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Madhya Pradesh High Court · body

2015 DIGILAW 44 (MP)

Atit Kumar v. Sarpanch, Gram Panchayat

2015-01-12

AJIT SINGH, ALOK ARADHE

body2015
ORDER 1. Heard on I.A. No.11644/2011, an application for condonation of delay. For the reasons stated in the application which is duly supported by an affidavit, we find that sufficient cause for condonation of delay of thirty days in filing the review petition is made out. Accordingly, the I.A. No.11644/2011 is allowed. With the consent of learned counsel for the parties the matter is heard finally. In this review petition, the application seeks review of the order dated 16.5.2011 passed by learned single Judge in Civil Revision No.2620/1999 by which he had dismissed the revision preferred by the applicant and affirmed the order passed by the lower appellate Court by which the application under Order 41 Rule 19 of the Code of Civil Procedure was dismissed. 2. The facts, giving rise to filing of the review petition, briefly stated, are that the applicant had filed a suit seeking the relief of declaration and permanent injunction which was dismissed vide judgment and decree dated 22.4.1997. Being aggrieved by the aforesaid judgment and decree, the applicant had filed an appeal before the lower appellate Court. The lower appellate Court vide order dated 7.4.1999 dismissed the appeal preferred by the applicant for want of prosecution. Thereupon, the applicant filed an application under Order 41 Rule 19 of the Code of Civil Procedure for restoration of the appeal. The lower appellate Court vide order dated 31.9.1999 dismissed the application for restoration of the appeal. The said order was challenged by the applicant in Civil Revision No.2620/1999 which was dismissed by a Bench of this Court inter alia on the ground that no sufficient cause for non-appearance of the counsel on the date when the appeal was called for hearing, was made out. In the aforesaid factual backdrop, the applicant has approached this Court. 3. Learned counsel for the applicant submitted that the impugned order dated 16.5.2011 suffers from error apparent on the face of the record inasmuch as learned single Judge did not take into account the affidavit duly sworn in by the counsel for the applicant as well as the death certificate of sister of the appellant and held that no explanation was offered for nonappearance of the counsel and death certificate of the appellant had not been filed. It is further submitted that for the mistake or inadvertence on the part of the counsel, the party should not be penalised. It is further submitted that for the mistake or inadvertence on the part of the counsel, the party should not be penalised. On the other hand, learned counsel for the non-applicant No.1 supported the impugned order. 4. We have considered the submissions made by learned counsel for the parties and have perused the impugned order. It is well settled in law that the party should not be penalised for the default committed by his counsel. [See: Rafiq and another v. Munshilal and another, AIR 1981 SC 1400 and Secretary, Deptt. of Horticulture, Chandigarh and another v. Raghu Raj, AIR 2009 SC 514 . Apart from this from perusal of the record, we find that an affidavit of the counsel was filed in which reasons were assigned for non-appearance of the counsel when the case was called for hearing. The applicant had also filed the death certificate of his sister along with the civil revision. However, both the aforesaid documents which have material bearing on the controversy involved in the case, were not taken into account by learned single Judge while passing the impugned order and a finding was recorded that no explanation has been offered for non-appearance of the counsel. 5. Bearing in mind the well settled legal proposition that the rules of procedure have to be construed so as to advance justice and should not be interpreted to make them penal statute for punishing erring parties, [See: Sheetal Prasad Saxena (Dead) by LRs. v. Union of India, AIR 1985 SC 1 ] as well as record of the case, we find that the impugned order suffers from error apparent on the face of the record inasmuch as while passing the impugned order, learned single Judge has not taken into consideration the aforesaid documents, namely, affidavit sworn in by the counsel for the applicant as well as the death certificate of sister of the applicant which have material bearing on the controversy involved in the case. 6. For the aforementioned reasons, we are inclined to allow the application for review. Accordingly, the order dated 16.5.2011 is recalled and Civil Revision No.2620/1999 is restored to file. In the result, the review petition is allowed. Pranay Gupta for applicant; Manoj Kumar Rajak for non-applicant No.1; Bramhadatt Singh for non-applicant No.2.