Research › Search › Judgment

Punjab High Court · body

2011 DIGILAW 565 (PNJ)

Bhartha v. Satbir Major

2011-02-11

RAKESH KUMAR GARG

body2011
JUDGMENT Mr. Rakesh Kumar Garg, J. (Oral) - This case was dismissed in default vide order dated 19.11.2010. CM No.14200-C of 2010 was filed through Sh. Yogesh Kumar Sharma, Advocate for restoration of the appeal by making the following averments: “2. That the above mentioned appeal was filed through late Shri Jatinder Kumar Sharma and Yogesh Kumar Sharma, Advocates. Shri Jatinder Kumar Sharma appeared for the Applicants, when the appeal was admitted on 14.5.1985 by this Hon’ble court. Thereafter, the appeal remained pending for hearing. The appeal was listed at Item No.337 on the Board of Hon’ble Mrs.Justice Yadav. At that time, the applicants took the brief from the Office of Shri Yogesh Kumar Sharma and entrusted the same to Shri J.L. Malhotra, Advocate, with the instructions that the appeal is to be argued by Mr. V.K. Jain, Senior Advocate. Accordingly, the memo of appearance was filed on 30.11.2007 in the Registry. The appeal remained pending and was on the Board of many Hon’ble Judges and the counsel had been prosecuting the appeal diligently. The appeal was on the Board of Hon’ble Mr. Justice R.K. Garg on 6.1.2010 and thereafter again added on 28.6.2010 at Item no.354 and remained pending for hearing. The applicants’ counsel- Mr. J.L. Malhotra and Mr. V.K. Jain had been closely watching the progress of the case. In the meantime, Mr. V.K. Jain, Senior Advocate, shifted to Delhi in order to practice in the Hon’ble Supreme Court of India on 1.11.2010. The brief of the case remained with Mr.J.L Malhotra, Advocate, for arguments. 3. That the matter came up for hearing on 19.11.2010 before Hon’ble Mr. Justice R.K. Garg. The applicants’ counsel Shri Yogesh Kumar Sharma could not appear, as he was not having any brief. Mr.J.L. Malhotra, Advocate could not appear on that day, as he was not feeling well. Mr. J.K. Bhatti, Advocate had made a request before the Hon’ble court for an adjournment, which was not rightly granted as Mr. Yogesh Kumar Sharma, was having the Power of Attorney. 4. That the absence of Mr. Yogesh Kumar Sharma, Advocate, or Mr. J.L Malhotra, Advocate, was not at all intentional or willful and it was due to the circumstances as explained in the preceding paragraphs. Hence, there was a sufficient cause for non-appearance of the counsel.” 3. Keeping in view the averments that the brief was withdrawn from the office of Mr. Yogesh Kumar Sharma, Advocate, or Mr. J.L Malhotra, Advocate, was not at all intentional or willful and it was due to the circumstances as explained in the preceding paragraphs. Hence, there was a sufficient cause for non-appearance of the counsel.” 3. Keeping in view the averments that the brief was withdrawn from the office of Mr. Yogesh Kumar Sharma, Advocate and no power of attorney was executed in favour of Sh. J.L. Malhotra, Advocate by the appellants, the aforesaid application was ordered to be dismissed. 4. Now vide instant application, again a prayer has been made for readmission of the appeal by making the following averments: “2. That the above-mentioned appeal was filed through late Shri Jatinder Kumar Sharma and Yogesh Kumar Sharma, Advocates. Shri Jatinder Kumar Sharma appeared for the Applicants, when the appeal was admitted on 14.5.1985 by this Hon’ble court. Thereafter, the appeal remained pending for hearing. The appeal was listed at Item No.337 on the Board of Hon’ble Mrs.Justice Yadav. At that time, the applicants took the brief from the Office of Shri Yogesh Kumar Sharma and entrusted the same to Shri J.L. Malhotra, Advocate, with the instructions that the appeal is to be argued by Mr. V.K. Jain, Senior Advocate. Accordingly, the memo of appearance was filed on 30.11.2007 in the Registry. The appeal remained pending and was on the Board of many Hon’ble Judges and the counsel had been prosecuting the appeal diligently. The appeal was on the Board of Hon’ble Mr. Justice R.K. Garg on 6.1.2010 and thereafter again added on 28.6.2010 at Item no.354 and remained pending for hearing. The applicants’ counsel- Mr. J.L. Malhotra and Mr. V.K. Jain had been closely watching the progress of the case. In the meantime, Mr. V.K. Jain, Senior Advocate, shifted to Delhi in order to practice in the Hon’ble Supreme Court of India on 1.11.2010. The brief of the case remained with Mr.J.L Malhotra, Advocate, for arguments. 3. That the matter came up for hearing on 19.11.2010 before Hon’ble Mr. Justice R.K. Garg. The applicants’ counsel Shri Yogesh Kumar Sharma could not appear, as he was not having any brief. Mr.J.L. Malhotra, Advocate could not appear on that day, as he was not feeling well. Mr. J.K. Bhatti, Advocate had made a request before the Hon’ble court for an adjournment, which was not rightly granted as Mr. Justice R.K. Garg. The applicants’ counsel Shri Yogesh Kumar Sharma could not appear, as he was not having any brief. Mr.J.L. Malhotra, Advocate could not appear on that day, as he was not feeling well. Mr. J.K. Bhatti, Advocate had made a request before the Hon’ble court for an adjournment, which was not rightly granted as Mr. Yogesh Kumar Sharma, was having the Power of Attorney. 4. That inspite of all steps taken by Mr. J.L. Malhotra, Advocate and Mr. Krishan Murari Yadav, Clerk to the counsel, to contact the applicants, there was no success and the applicants could not be contacted. Hence, Mr. J.L. Malhotra, Advocate, deputed Mr. Krishan Murari Yadav, Clerk to go to applicants’ village and inform the applicants. Accordingly, Mr.Krishan Murari Yadav, Clerk, went to the village on 1.2.2011 and informed them about the developments of the case. It was revealed that the applicants did not receive any information regarding progress and dismissal thereof. Sarvshri Jaswant Singh, Jai Bhagwan and Om Parkash visited the office of their counsel on 3.2.2011. Hence, the present application is being filed. 5. That the absence of Mr. Yogesh Kumar Sharma, Advocate, or Mr. J.L Malhotra, Advocate, was not at all intentional or willful and it was due to the circumstances as explained in the preceding paragraphs. Hence, there was a sufficient cause for non-appearance of the counsel.” 5. Admittedly, the appellant had withdrawn the brief from the office of his earlier counsel Shri Yogesh Kumar Sharma and had entrusted it to Sh. J.L.Malhotra, Advocate with further instructions to instruct Shri V.K Jain, Sr. Advocate to argue the case. However, admittedly, the appellants have not executed any power of attorney in favour of the aforesaid counsel Sh. J.L. Malhotra, Advocate inspite of the fact that he had filed his memo of appearance on behalf of the appellants on 30.11.2007. The power of attorney has been executed by the appellants in favour of Sh. J.L. Malhotra, only on 3.2.2011. Thus, there was no duly authorized substitute for the appellants on 19.11.2010 when this appeal was dismissed in default. The appellants had withdrawn the brief from the office of Sh. Yogesh Kumar Sharma, Advocate consciously and had entrusted the same to Sh. J.L. Malhotra, Advocate with instruction to get the case argued from Senior Advocate Sh. V.K. Jain without executing any power of attorney in his favour. The appellants had withdrawn the brief from the office of Sh. Yogesh Kumar Sharma, Advocate consciously and had entrusted the same to Sh. J.L. Malhotra, Advocate with instruction to get the case argued from Senior Advocate Sh. V.K. Jain without executing any power of attorney in his favour. It was for the appellants to take necessary steps for pursuing the appeal in which they have failed. 6. In this view of the matter, I find no merit in this application for restoration. Dismissed.