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2008 DIGILAW 1459 (JHR)

Rashidan Bibi v. Md. Hasan

2008-12-16

AJIT KUMAR SINHA, GYAN SUDHA MISRA

body2008
JUDGMENT : This appeal has been preferred against the order dated 6.2.2006 passed by the learned Single Judge in Misc. Appeal No. 398 of 2003 , by which the appeal was dismissed and the order passed by the 4th Additional District Judge, Palamau in Misc. Case No.2 of 2002, whereby the restoration petition filed under Order 41 Rule 19 read with Section 151 of the Code of Civil Procedure had been dismissed, was confirmed. 2. To highlight the controversy giving rise to this appeal, it may be essential to state that the appellant-Rashidan Bibi had filed a Partition Suit in the court of learned Munsif bearing Partition Suit No. 53 of 1992 , whereby she had sought the relief of declaration of title and confirmation of possession on a piece of land comprising an area of 0.12 acres, situated at village Haidernagar , district-Palamau on which she had also built her residential house. The suit after contest was dismissed against which the plaintiff-appellant preferred an appeal before the 4th Additional District Judge, Palamau . When the appeal was called out for hearing, the advocate appearing on behalf of the appellant failed to appear and consequently the appeal was dismissed in default. Thereafter a Misc.Case No.2 of 2002 was filed by the plaintiff-appellant before the District Judge for restoration of the appeal which had been dismissed in default. But unfortunately for the appellant, the application for restoration was dismissed on the ground that the plaintiff-appellant in the restoration petition had submitted that the ground for non appearance of the counsel for the appellant was due to sudden illness of a member of his family due to which he had left the court premises and went home. The said fact had not been stated in his petition for restoration. It was stated in the restoration petition that the lawyer was busy in another court due to which he did not appear. However, the Additional District Judge, before whom the restoration petition was filed, was pleased to hold that the appellant’s lawyer had failed to make out a case of sufficient cause, so as to grant the relief of restoration of the appeal. 3. The application for restoration, therefore, was rejected against which the appellant filed Misc. Appeal No. 398 of 2003 before the learned Single Judge. 3. The application for restoration, therefore, was rejected against which the appellant filed Misc. Appeal No. 398 of 2003 before the learned Single Judge. The learned Single Judge was pleased to upheld the order passed by the Additional District Judge and reiterated that the appellant’s lawyer has not been consistent in making out a case of sufficient cause, explaining his non appearance and therefore it was not a fit case where the application for restoration should have been allowed. Consequently, the appeal was also dismissed and the order of the 4th Additional District Judge, dismissing the Misc. Case by which the restoration of the appeal was refused, stood confirmed. 4. This Letters Patent Appeal is directed against the aforesaid order and in support of the appeal the counsel for the appellant assailed the orders passed by the courts below , repeating the submissions which were advanced before the courts below, as referred to hereinbefore. It was submitted that the courts below had committed an error in not accepting the case of the appellant mainly on the ground that he could not appear when the appeal was called out as he was prevented from appearing on account of illness of a member of his family due to which he has to rush home and, therefore, the same was a sufficient cause of non appearance and dismissal of the restoration petition vide Misc. Case No. 2 of 2002 was unjustified. 5. Having heard counsel for the appellant and after due deliberation in the light of materials on record, we are of the view that the appellant’s counsel has miserably failed in proving that he had a sufficient cause for non appearance on the date when the appeal was called out for hearing as there is a clear discrepancy in the version which he had incorporated in the petition and what was submitted later in court. Thus the version in the restoration petition being Misc. Case No.2 of 2002 and his oral submission before the appellate forum was clearly contradictory to each other and on that premises if the court below did not permit the restoration of the appeal, the same cannot be held to be suffering from any illegality or infirmity. It cannot be denied that anyone who is coming to the court, must come with clean hands and should place the fact the way it is without any concoction. It cannot be denied that anyone who is coming to the court, must come with clean hands and should place the fact the way it is without any concoction. In the instant matter, the appellant’s lawyer in the first appellate court clearly came out with two versions, justifying his non appearance and on account of this discrepancy it was definitely difficult to believe the version which was stated by the counsel for the appellant. Thus the courts below appears to be correct in arriving at a conclusion that a case of sufficient cause was not made out by the counsel for the appellant. But, having said that, we are equally conscious of the fact that the plaintiff-appellant on her part had not made any mis-statement before the court and if any mis-statement was made, it was only on the part of her counsel for which she will suffer as her appeal dismissing her suit for declaration of title on a piece of land on which her residential house is existing, without having availed the opportunity of appeal, is bound to prejudice her case seriously, as the dismissal of the suit would automatically have the effect of her eviction from the residential premises even without the consideration of the appeal which she had filed before the 4th Additional District Judge, Palamau. 7. Time and again, it has been laid down in a catena of decisions that a litigant should ordinarily not be made to suffer on account of latches of the advocate and although, this ratio cannot be uniformly applied under all circumstances in all cases, its application cannot be over-looked in a given circumstance specifically if it results into grave injustice. 8. In the instant matter, we have clearly noted that it is the appellant’s counsel, who can be attributed with ill motive to spin a story in which the appellant had absolutely no role, nevertheless she would be suffering the consequence of her counsel’s lapse. 9. We, therefore, deem it appropriate to allow this appeal merely for the aforesaid reason, although we endorse the view taken by the courts below that a case of sufficient cause was not made out for restoration of the appeal. We therefore allow this appeal and restore the Title Appeal No.3 of 1997 to its original number, for the reasons assigned hereinbefore. 10. We therefore allow this appeal and restore the Title Appeal No.3 of 1997 to its original number, for the reasons assigned hereinbefore. 10. This Letters Patent Appeal, therefore, is allowed with a direction that Title Appeal No.3 of 1997 shall stand restored to its original number before the 4th Additional District Judge, Palamau to be heard and disposed of on merit. However, there shall be no order as to costs.