Dheru Ram (Deceased) Through Lrs vs Munshi Ram (Deceased)Lrs
2023 Latest Caselaw 10877 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CMPMO No.551 of 2022 Date of Decision: 3.8.2023

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Dheru Ram (Deceased) through LRs. .......Petitioners

Versus Munshi Ram (deceased)LRs ... Respondents

_______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1

For the Petitioner: Mr. Ankush Dass Sood, Senior Advocate with Mr. Rakesh Kumar Shamra, Advocate.

For the Respondent: Mr. Divya Raj Singh, Advocate. _______________________________________________________

Sandeep Sharma, Judge(oral):

Being aggrieved and dissatisfied with order dated

30.09.2022 passed by learned Civil Judge, Court No.2, Amb, District

Una, H.P., whereby an application for restoration of execution petition,

which was dismissed in default on 9.5.2011, came to be dismissed,

petitioners/DH have approached this Court in the instant proceedings

filed under Article 227 of the Constitution of India, praying therein to

set-aside aforesaid order and thereafter allow the application for

restoration of execution petition.

2. Having heard learned counsel for the parties and perused

material available on record vis-à-vis reasoning assigned in the order

impugned in the instant proceedings, this Court finds that Court below

Whether the reporters of the local papers may be allowed to see the judgment?

has rejected the application for restoration, having been filed by the

petitioners/DH, on very flimsy grounds. It was categorically stated on

behalf of the petitioners/DH that on 9.5.2011, learned counsel

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representing them was unable to put in appearance on account of the

fact that he was conducting case in the Court of learned District and

Sessions Judge, Una, such plea of the petitioners/DH was not

accepted by the Court below for the reason that no zimni orders

showing presence of the counsel before the learned District and

Sessions Judge, Una was placed on record.

3. Leaving everything aside, it is well settled that litigant

cannot be allowed to suffer for the fault, if any, of lawyer. Once, it is

not in dispute that petitioners/DH had engaged lawyer to defend them

in the execution proceedings, no fault, if any, can be said to have

been committed by the petitioners/DH, if lawyer engaged by them

failed to put in appearance. In such like situation, Court instead of

ordering dismissal ought to have issued notice to the petitioners/DH

calling upon them to cause their presence either in person or engage

some other counsel Moreover, reason assigned on record for non-

appearance of their counsel was sufficient for the court below to order

restoration of the execution petition, which was dismissed in default

on 9.5.2011. No doubt, careful perusal of order impugned, if read in

its entirety, suggests that petitioners/DH have been negligent in

prosecuting the case, but Court below taking that aspect of the matter

could allow the application by imposing some costs upon the

petitioners/DH.

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4. Consequently, in view of the above, this Court finds merit

in the present petition and accordingly same is allowed and order

dated 30.9.2022, passed by learned Court below is quashed and set-

aside and application for restoration is allowed, subject to payment of

costs of Rs. 5000/- payable by the petitioners/DH to the Advocate Bar

Association, Amb, District Una, H.P., within a period of two weeks.

Before proceedings further with the execution proceedings, Court

below shall ensure that costs, as quantified by this Court, is deposited

by the petitioners/DH.

5. Learned counsel representing the parties undertake to

cause presence of their respective clients before the Court below on

18.8.2023, enabling it to proceed with the matter forthwith. Pending

applications, if any, also stand disposed of.

(Sandeep Sharma), Judge August 3, 2023

(shankar)