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2013 DIGILAW 338 (UTT)

RAM KRISHAN v. STATE OF UTTARAKHAND

2013-06-17

B.S.VERMA

body2013
JUDGMENT Hon’ble B.S. Verma, J. (Oral): Heard Sri Pankaj Purohit, Advocate for the petitioner and Sri Rajesh Sharma, Brief Holder, appearing on behalf of the respondent/State. 2. By means of this petition the petitioner has sought a writ in the nature of certiorari for quashing the order dated 15-12-2008, passed by the District Judge Chamoli in Misc. Civil Case No. 47/2008, Ram Krishan Vs. State of Uttarakhand, whereby the application for recalling the order dated 18-12-1997, has been rejected. 3. By a perusal of impugned order dated 15-12-2008, it reveals that appeal No. 13 of 1997 was preferred by petitioner U/S 9 of U.P. Public Premises (Eviction of Unauthorized Occupants) Act, 1972 and Sri Gajpal Singh Rawat Advocate was his counsel in the appeal which was dismissed in absence of the counsel on 18.12.1997 by the learned District Judge. Thereafter the petitioner filed recall application which was numbered as Misc. Civil Case No. 47 of 2008. The learned District Judge vide impugned order dated 15.12.2008 rejected the recall application observing in his order that the applicant-petitioner is residing in the nearest Tehsil of the District and his village is not far from local area of the District and he is not interested to know the result of the appeal for last eleven years which clearly shows his unwillingness and carelessness. 4. This fact has not been denied in the counter affidavit filed on behalf of State that the counsel engaged by the petitioner at the time of filing the appeal, who was practicing at Gopeshwar District Chamoli, had shifted to Rudraprayag. In appeal presence of appellant is not necessary and he may be represented by the counsel. Although the delay in filing the recall application is of 11 years, but in the recall application the petitioner has mentioned this fact that Sri Gajpal Singh Rawat Advocate was his counsel. On 28-5-2008 when by chance he came to the office of Tehsil, Pokhari, he came to know that the tenant of applicant is trying to proceed U/S 145 Cr.P.C. for the same property against him. Then he tried to know the position of appeal No. 13 of 1997 and came to Gopeshwar and he knew that the appeal has been dismissed on 18.12.1997 in the absence of his counsel. Then he tried to know the position of appeal No. 13 of 1997 and came to Gopeshwar and he knew that the appeal has been dismissed on 18.12.1997 in the absence of his counsel. He further pleaded in the recall application that his counsel Sri Gajpal Singh Rawat had shifted to new District of Rudraprayag for practice and he never informed him about the dismissal of the appeal in his absence and when he came to know about the dismissal of appeal he immediately took steps for recalling the order and affidavit has also been filed along with delay condonation application. 5. The learned counsel appearing on behalf of the petitioner has contended that the petitioner could not file the recall application within time as his counsel had not sent him the information and for the fault of Counsel the party should not suffer and the case should be decided on merit and the petitioner should not be deprived to get the case examined on merits. Learned counsel has placed reliance on the case of Raj Kishore Pandey Vs. State of U.P. and others, reported in 2009(1) Supreme 644 . 6. I have gone through the above cited case. In the above cited case the court had rejected the writ petition for non-prosecution and further has declined to grant the relief sought in the restoration application only on the ground that the reasons stated in the affidavit accompanying the application were not satisfactory. The Hon’ble Apex Court has observed in the cited judgment that the appellant had engaged the services of two learned counsels. Unfortunately for him, one was elevated to the bench and other was suffering with physical ailment. All this information was forthcoming in the application filed for restoration, but the High Court has not appreciated these facts. Whether the applicant has made out sufficient cause or not, in the application filed, the court is required to look at all the facts pleaded in the application. No doubt, the consideration of the existence of sufficient cause is the discretionary power with the court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the court in such matters should be to advance the cause of justice and not the cause of technicalities. No doubt, the consideration of the existence of sufficient cause is the discretionary power with the court, but such discretion has to be exercised on sound principles and not on mere technicalities. The approach of the court in such matters should be to advance the cause of justice and not the cause of technicalities. A case as far as possible should be decided on merits and the party should not be deprived to get the case examined on the merits. 7. In the case at hand this fact has not been denied by the State that the counsel engaged by the petitioner in appeal had shifted to another district. The petitioner had specifically pleaded in recall application that his earlier counsel had not informed him about the dismissal of appeal for non-prosecution and when he came to know about the result of appeal immediately he had filed the recall application. In the facts and circumstances of the case, the petitioner should not suffer. It is the default on the part of the counsel and not the petitioner and as far as possible the case should be decided on merits and the petitioner should not be deprived to get the case examined on the merits. No prejudice would be caused to State if the appeal is decided on its merits. 8. In view of the discussion made above, the impugned order is set aside. The recall application moved by the petitioner is allowed. 9. The learned District Judge Chamoli is directed to decide the Misc. Civil Appeal No. 13/1997 Ram Krishan Vs. State of Uttarakhand on its merits, subject to payment of Rs. 5000/- as cost by the petitioner to be deposited with S.L.S.A., to be used for mediation purposes, within four weeks from today. 10. The petitioner is directed to appear before the District Judge, Chamoli on 5-8-2013. He shall file the receipt of payment of cost along with copy of this order before the court concerned on the above date fixed. 11. With the above direction the writ petition is allowed.