Delhi High Court
Ganga Bai vs Bachomai Tulsidas And Anr. on 8 September, 1971
Equivalent citations: AIR 1972 Delhi 55
Bench: D Kapur
JUDGMENT
1. I had dismissed this Writ Petition in default on 12th February, 1971. A Regular Second Appeal which had been ordered to be heard along with this Writ Petition was also dismissed in default on the same day. An application for setting aside the dismissal and for restoration of the Writ Petition was moved in this Court on 15th July, 1971, and a similar application was filed in the Regular Second Appeal Subsequently an application under Section 5 of the Limitation Act for condensation of delay in filing the application for restoration was also filed. It was stated in the application for restoration that Shri Jetha Nand Betab. Advocate of the applicant had colluded with the other side and had not informed the applicant of the date of hearing.
2. Although I would consider the fact that the applicant was not informed of the date of hearing and of the decision of the appeal to be a ground for conducing delay in moving the application for restoration. I do not consider the allegation that the Advocate of the petitioner was colluding with the opposite side to be worthy of belief. There is no material whatsoever to show that there was any such collusion. I have been taken through the affidavit filed by the applicant and I can see nothing therein to show that the counsel was failing in his professional duty or colluding with the respondent as alleged by the applicant. These are very serious allegations against an Advocate and should not have been lightly brought in this fashion. As the only ground for maintaining the application for restoration is the omission of Shri Jetha Nank Betab. Advocate to perform his professional duties. I consider that this application and the application in the Regular Second Appeal which is no the same grounds cannot succeed. It has been pointed out in Mt. Bholi v. Puran Singh, Air 1933 Lah 642 and Qadar Baksh V. Hakam, Air 1933 lah 1043 (1) that an omission or failure of the counsel to determine the date of the hearing is no ground to set aside the dismissed in default. It is the practice in this Court to have a running list of cases and when a party is represented by an Advocate no intimation of the date of hearing is to be sent to the said party. The carelessness or negligence or omission of the Advocate is no ground to order the restoration of the appeal. The allegation that the Advocate was colluding with the opposite side has not at all been sub-staintiated by anything other than a bare allegation to this effect. It is unfortunate that such an allegation has been made without any material to support it.
3. An application like the present can only be allowed when the applicant shows sufficient cause for being unable to appear personally or through counsel on the date of hearing. I cannot find any sufficient cause and there fort, have to reject the application. I do not however impose costs on the applicant as she appears to be a poor widow.
4. Application rejected.
