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Madhya Pradesh High Court · body

2019 DIGILAW 783 (MP)

Kanha Industries (M/s) v. State of M. P.

2019-11-13

VISHAL MISHRA

body2019
ORDER 1. Present MCC has been filed by the applicant for restoration of the W.P. No. 4883/2017, which was dismissed for want of prosecution on 20.8.2019. 2. It is alleged by the learned counsel for the applicant that as he comes from Datia to argue the matter but due to some technical fault in his mobile, he could not get message regarding listing of this matter and therefore, he was unable to come on that date. It is further submitted that due to mistake of the counsel, litigant should not be made to suffer. 3. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of M.K.Prasad v. P.Armugam, reported in, (2001) 6 SCC 176 and has argued that it is a settled law that for fault of counsel, a party should not be made to suffer. 4. Heard learned counsel for the parties and perused the record. 5. It is settled law by the Hon'ble Supreme Court in the case of Rafiq and ors. v.Munshilal and anr. reported as AIR 1981 SC 1400 , wherein the Hon'ble Court has held as under : "Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid him fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel". The Hon'ble Supreme Court in the case of M.K.Prasad v. P.Armugam, reported in, (2001) 6 SCC 176 has held as under; "10. In the instant case, the appellant tried to explain the delay in filing the application for setting aside the ex parte decree as is evident from his application filed under section 5 of the Limitation Act accompanied by his own affidavit. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. Even though the appellant appears not to be as vigilant as he ought to have been, yet his conduct does not, on the whole, warrant to castigate him as an irresponsible litigant. He should have been more vigilant but his failure to adopt such extra vigilance should not have been made a ground for ousting him from the litigation with respect to the property, concededly to be valuable. While deciding the application for setting aside the ex parte decree, the Court should have kept in mind the judgment impugned, the extent of the property involved and the stake of the parties. We are of the opinion that the inconvenience caused to the respondent for the delay on account of the appellant being absent from the Court in this case can be compensated by awarding appropriate and exemplary costs. In the interests of justice and under the peculiar circumstances of the case, we set aside the order impugned and condone the delay in filing the application for setting aside ex parte decree. To avoid further delay, we have examined the merits of the main application and feel that sufficient grounds exists for setting aside the ex parte decree as well." 6. Applicant has also filed I.A. No. 4532/2019, an application under section 5 of Limitation Act, as application for restoration of writ petition is barred by 50 days. 7. It is submitted that information regarding dismissal of writ petition could not be received in time and as soon as the information is received, thereafter, application for restoration along with application under section 5 of Limitation Act has been filed. 8. Considering the aforesaid judgments passed by the Hon'ble Supreme Court, wherein it is categorically held that for the fault of counsel, a party should not be made to suffer, this Court deems it fit to allow the MCC. 9. Therefore, the Misc. Civil Case is allowed subject to payment of cost of Rs. 1500/- (Rupees Fifteen Hundred Only) to be deposited in the Legal Aid Services within seven working days. 10. W.P. No. 4883/2017 is restored to it's original number. 11. MCC stands allowed as indicated herein above. I.A. No.4532/2019 also stands disposed of. 12. A copy of this order be kept in the record of W.P. No. 4883/2017.