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2017 DIGILAW 68 (RAJ)

Babu Lal s/o Shri Basti Ram v. Commissioner City

2017-01-05

GOVERDHAN BARDHAR, NAVIN SINHA

body2017
ORDER : 1. The present appeal arises from order dated 02.06.2016 dismissing S.B. Civil Restoration Application No.44/2016 declining to restore S.B. Civil Writ Petition No.2103/2014 dismissed for non-prosecution. 2. Learned Counsel for the Appellant submits that the Appellant has been residing on the disputed property for the last sixty years. Upon interference by the Municipal Corporation he filed a suit. The application for interim injunction was rejected by the Addition Civil Judge (S.D.) No.6, Jodhpur Metropolitan affirmed by the Additional District Judge No.4, Jodhpur Metropolitan. The writ petition came to be filed thereafter and interim order granted in his favour on 21.03.2014. Unfortunately the Counsel engaged by him stopped appearing on 23.07.2014 leading to the application being dismissed for non-prosecution. Serious prejudice shall be caused to the Appellant if the writ petition is not restored for disposal on merits in accordance with law. 3. Counsel for the Nagar Nigam, Jodhpur has opposed the appeal contending that the matter involves public interest. The Appellant alone is to be blamed for his negligent conduct in not pursuing matters appropriately after grant of interim order. 4. We have considered the submissions on behalf of the parties. 5. In the restoration application the Appellant pleaded that he became aware of the order dated 02.06.2016 only when employees of the Nagar Nigam came to dispossess him. He approached the earlier Counsel and in absence of any satisfactory reply obtained a copy of the order and engaged a fresh Counsel for protection of his interests. 6. The Appellant was pursuing the litigation by engaging a lawyer who had professional responsibility to protect the interest of the Appellant. Once a litigant engages a lawyer and empowers him with Vakalatnama, he obviously become sanguine that his lawyer will look after his interest. There will have to be difference where despite communications from his lawyer a litigant does not bother any more to keep in touch because an interim order had been obtained. Situations where the lawyer does not keep the litigant informed of the developments of the case will be different. The relationship between the lawyer and client is one of trust. The Appellant had engaged a lawyer who did not keep him informed. Of course, the Appellant must also share a part of the blame in not bothering to meet his lawyer for nearly one & half years. The relationship between the lawyer and client is one of trust. The Appellant had engaged a lawyer who did not keep him informed. Of course, the Appellant must also share a part of the blame in not bothering to meet his lawyer for nearly one & half years. To dismiss the appeal shall not be justice; rather it will be injustice to the Appellant who would stand deprived of an opportunity of hearing for what was essentially no fault on his part strictly speaking. 7. In (1981) 2 SCC 788 , Rafiq v. Munshilal it was observed as follows:- "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job………… The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court………." 8. Counsel for the Appellant assures the Court that the Appellant shall be vigilant in pursuing the writ petition and shall not seek any adjournment unless it be an absolute imperative for unavoidable reasons. 9. Keeping in mind that ultimately justice should prevail, the order under appeal is set aside and the restoration application is allowed. Civil Writ Petition No.2103/2014 is restored to file for disposal on merits. 10. Liberty granted to the parties to motion before the Learned 11. Single Judge for priority listing. The appeal is allowed.