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2006 DIGILAW 378 (PNJ)

Lakhbir Kaur Kang v. Harvinder Kumar

2006-02-08

HEMANT GUPTA

body2006
Judgment 1. The challenge in the present revision petition is to the order dated 16.09.2003 passed by the learned District Judge, Chandigarh whereby the appeal filed by the petitioner was not restored which was dismissed in default earlier on 18.12.2002 on account of absence of her counsel. 2. The petitioner who is ordinary resident of United States of america has sought the ejectment of the respondents on the ground of bona fide personal requirement of the premises in dispute. The said ejectment petition was dismissed on 18.12.1998. Appeal filed by the petitioner through her counsel was dismissed in default when none appeared for the appellant on 18.12.2002. Subsequently, application for restoration has been dismissed relying upon a judgment of Supreme Court in Ramon Service ltd. Vs. Subhash Kapoor (2001) (1) SCC 188. 3. A perusal of the record shows that the counsel for the petitioner has not informed the appellant that he would not be appearing on the date fixed before the learned Appellate Authority. The appellant was not in a position as well to appear in person on the said date as she is ordinary resident of United States of America. Therefore, failure to restore the appeal would harm the interest of the appellant on account of mistake of her counsel. The petitioner has taken all possible steps within her control to prosecute the appeal but if the counsel has failed to appear before the appellate Authorities and such consequences cannot be passed on to the litigant. 4. In view thereof I am of the opinion that the order passed by the learned Appellate Court on 16.9.2003 cannot be sustained in law. Consequently, the same is set aside and the appeal is restored to its original number. However, the counsel for the petitioner, whose absence led to dismissed in default, shall deposit a sum of Rs.10,000/- as costs with the legal Services Authority, Chandigarh for the default committed in prosecuting the appeal. 5. The parties through their counsel are directed to appear before the learned District Judge, Chandigarh on 17.3.2006.