Man Singh Decd Thr Lrs vs Gaon Sabha Jindpur & Ors
2012 Latest Caselaw 455 Del

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     *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          LPA 1072/2011
                                &
                      CM APPL. 23091-93/2011

                                             Date of decision: 23.1.2012.


+        MAN SINGH DECD THR LRS                 ..... Appellant
                      Through: Mr. R.K. Saini, Advocate.

                                    Versus

         GAON SABHA JINDPUR & ORS               ..... Respondents

Through: Mr. Asit Tiwari, Advocate for R.2 Ms. Sangita Sondhi, Advocate for R.4.

CORAM:

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

A.K. SIKRI, ACTING CHIEF JUSTICE: (ORAL)

1. The appellants herein claim themselves to be the bhumidar of certain

land situated in village Jindpur, Delhi. This claim of the appellants was

not accepted by the Revenue authorities, the Revenue Assistant had passed

orders dated 31st August, 1974 vesting the land in Gaon Sabha. The

appellants were accordingly dispossessed in the year 1974 itself.

Challenging the aforesaid orders dated 31st August, 1974 of the Revenue

Assistant as well as their dispossession, the appellants preferred Revision

Petition which was also dismissed by the Financial Commissioner on 1 st

April, 1986. Assailing these orders the appellants had preferred W.P (C)

117/1987. In this writ petition, the appellants inter alia averred that on the

same issue another Writ Petition (C) 2415/1986 was also pending in this

Court in which rule Nisi had been issued. In these circumstances, the writ

petition of the appellants was directed to be taken up alongwith Writ

Petition (C) 2415/1986 issuing rule in this petition as well.

2. When this writ petition came up for hearing in the year 2001, the

same was dismissed in default as nobody had appeared on behalf of the

appellants. We may note at this stage that the appellants had engaged Mr.

G.R. Mata, as their advocate who had filed the said writ petition. Mr. Mata

moved an application for restoration of the writ petition, inter alia, stating

that he could not appear due to his ailment and had practically given up his

practice. However, in the present case, because of lack of communication

with the appellants, he could not withdraw himself from the case. The writ

petition was restored recalling the order of dismissal. Thereafter, it came up

for hearing on 6th September, 2004. The learned Single Judge directed to

list this writ petition alongwith W.P(C) 2415/1986 having regard to the

earlier orders. On that day, the proxy counsel had appeared on behalf of the

appellants. The matter was taken up on 26th October, 2004. The file of

W.P.(C) 2415/1986 had been summoned from which it transpires that said

writ petition had been dismissed on 23 rd July, 2004 for non-prosecution.

However, as nobody appeared on behalf of the appellants in their writ

petition, this petition was also dismissed for non-appearance on 26th October

2004 taking note of the fact that even earlier also this writ petition was

dismissed on 22nd February, 2001. The appellants filed CM Appl.

17274/2011 for recall of the said order. Since there was delay of about

seven years in preferring the said application, the same has been dismissed

by the learned Single Judge inter alia stating that the application has been

filed without explaining as to why their counsel could not appear on 26 th

October, 2004 when on previous date i.e. 26 th September, 2004 proxy

counsel had appeared for the appellants. Assailing this order, the present

appeal is filed.

3. The submission of learned counsel for the appellant is that Mr. Mata

was ailing and had not been appearing in the Court. He has drawn our

attention to the earlier application for restoration filed by Mr. Mata in which

he has stated this fact. He thus submits that the counsel could not appear

because of the sickness and insofar as appellants are concerned, since they

had engaged the counsel who never informed about his ailment and had not

withdrawn from the case, the appellants were under the bona fide

impression that the matter is being properly looked after by the counsel. He

further submits that Mr. Mata expired on 1st June, 2008 as per the

information obtained from the website of Bar Association. His submission

is that in these circumstances, the delay should not be the reason for

dismissing the application. He has relied upon the following judgments in

support of his plea.

4. In Ram Kumar Gupta & Ors. Vs. Har Prasad & Anr. AIR 2010 SC

1159 the Apex Court held that the application for restoration should not

have been rejected only on the ground of delay and laches but the Court

was to see whether there was sufficient cause for non-appearance.

Following observations from the said judgment are pressed by the learned

counsel:-

"That apart, considering the fact that the appellants had been prosecuting the litigation since 1982 diligently and there was no lapse on their part till

the writ petition was dismissed for non prosecution and also considering the fact that a lawyer was engaged by them to contest the matter in the High Court who, however, subsequently was designated as an Additional Advocate General of the State and, therefore, could not be present at the time the writ petition was taken up for hearing, we cannot but hold that it would be improper that the appellants should be punished for non appearance of the learned counsel for the appellants at the time as we are of the view that the appellants were suffering injustice merely because their chosen advocate had defaulted: In Rafiq & Anr. v. Munshilal & Anr. (1981 (2) SCC 788): (AIR 1981 SC 1400), this Court has also drawn the same conclusion while considering the application for restoration of a writ application when the learned counsel for the appellant could not be present at the time of hearing of the application."

5. Another judgment is referred to by the learned counsel is Narmada

Nursery K.G. and Junior School, M.P. Vs. Regional Provident Fund

Commissioner & Anr. JT 1999 (10) SC 406 wherein the Court held that if

the writ was dismissed for non-prosecution which was the due to the

negligence of the lawyer, the litigant should not suffer and the opposite

party can always be compensated in terms of costs. Last judgment on

which reliance was placed is a Division Bench judgment of this Court in

Dr. Munjula Krippendorf Pathak Vs. Vijay Dixit & Ors. 146 (2008) DLT

566 wherein the Court held as under:-

"11. That a justice-oriented approach has to be adopted by the Courts while dealing with applications for seeking restoration of cases dismissed in default is evident even from the decision of the Supreme Court in Mahendra Rathor Vs. Omkar Singh and Ors.(supra).

12. The following legal propositions may, therefore, be taken to be well settled viz.

(i) That the Court has to adopt a liberal approach in interpreting the expression „sufficient cause‟ whether the same is for the purpose of extension of time in making the application or for explaining the non-appearance of the litigant on the date the suit was dismissed for non-prosecution.

(ii) That sufficient cause has to be seen by reference to the date on which the suit was dismissed for non-prosecution or the defendant proceeded ex parte and not by reference to the earlier defaults committed by him which the Court may have overlooked or condoned.

13. Applying the above principles to the case at hand, we are of the view that the order passed by the learned Single Judge is much too harsh to be legally sustained. We say so firstly because the learned Single Judge has not addressed himself to the question of existence or otherwise of sufficient cause for non-appearance of the appellant on the date of the dismissal of the suit and for condonation of delay in making the restoration application."

6. There is no quarrel about the aforesaid proposition and law on the

subject. It is no doubt if the applicant whose writ petition was dismissed for

non-prosecution is able to show sufficient cause for non-appearance on the

date of dismissal of the proceedings and also is able to explain the delay

satisfactorily for approaching the Court at belated stage, liberal approach

has to be taken in the matter and normally it should be endeavour of the

Court to deal with the matters on merits. At the same time, it is also trite

law that the litigant has to be vigilant and he should contact and take part in

the proceedings with due diligence. If negligence on the part of the litigant

is established in a particular case, then the Courts are not to come to the

rescue of such applicants. We find that present case falls in this category

and shows utter callousness and lack of due diligence on the part of the

appellants in pursuing their cases. As pointed out above, this writ petition

was first dismissed in default on 22nd February, 2001. No doubt, this

petition was restored on the application of the counsel who had stated in the

said application that he had been ailing for quite some time and had

practically given up his legal practice. However, due to lack of

communication he was not in a position to withdraw from the case. At the

same time, it also demonstrates that at least since 2001, the appellants were

not in contact with their lawyer. This position remained not only till 2004

when the writ petition was dismissed in default again but continued till

September, 2011 as the application was filed only at that time. Now, the

knowledge of the order is attributed to the fact that Forest Department

started utilizing the land in question in August, 2011. Thus, even at that

time the appellant had not approached the counsel. This shows utter

callousness on the part of the appellants who did not try to find out the fate

of the proceedings for at least 11 years.

7. The Apex Court in Hameed Joharan Vs. Abdul Salam, (2001) 7

SCC 573 made the following observations:-

"........It cannot but be the general policy of our law to use the legal diligence and this has been the consistent legal theory from the ancient times: even the doctrine of prescription in Roman law prescribes such a concept of legal diligence and since its incorporation therein, the doctrine has always been favoured rather than claiming disfavor. Law courts never tolerate an indolent litigant since delay defeats equity - the Latin maxim vigilantibus et non dormientibus jura subveniunt ( the law assists those who are vigilant and not those who are indolent). As a matter of fact, lapse of time is a species for forfeiture of right...."

8. Further, as already pointed out above, the appellants were

dispossessed way back in the year 1974; land in question is a forest area

which is to be maintained as green. It has already been handed over to the

Forest Department for this purpose.

9. For all these reasons, we are not inclined to interfere with the orders

passed by the learned Single. Finding no merit in this application, the same

is dismissed.

ACTING CHIEF JUSTICE

RAJIV SAHAI ENDLAW (JUDGE)

JANUARY 23, 2012 skb