Himachal Pradesh High Court

Cantonment Board Kasauli vs Rajesh on 12 October, 2023

Bench: Rakesh Kainthla

Cantonment Board Kasauli Versus Rajesh Kapoor and another.

CMP(M) No. 135 of 2020 and CMP No. 2974 of

2020 in RSA No. 642 of 2008.

Reserved on 6.10.2023.

12.10.2023 Present: Mr. Shashi Shirshoo, Central Government Counsel, for the applicant/appellant.

Mr. K.D. Sood, Sr. Advocate, with Mr. Het Ram

Thakur, Advocate, for non-applicant/ respondent No.1.

None for non-applicant/respondent No.2,

though served.

CMP(M) No. 135 of 2020

The present application has been filed for

condonation of delay in filing the Civil Misc. Petition under

Order 9 Rule 4 read with Section 151 of CPC.

2. It has been asserted that the application was

filed beyond the limitation period. The order was passed

on 20.9.2012, which came to the notice of the applicant

only in November 2019, when the Officers of the

Cantonment Board sought to know the status of the case

and found that a stop order was passed on 20.9.2012.

Hence, the Officers were advised to move the application

for restoration along with an application for condonation

of delay. They filed the application but the same is barred

by limitation; hence it was prayed that the application be

allowed.

3. The application is opposed by filing a reply,

denying the contents of the application. It was asserted

that there is no sufficient cause for condonation of delay.

The applicant was grossly negligent in filing the

application for restoration of appeal, which was dismissed

as the steps for service of respondent no. 2 were not taken

by the applicant despite repeated opportunities. Three

weeks were granted for taking steps, failing which the

appeal was to be dismissed for non-prosecution without

reference to the Court. The name of Sh. Baldev Singh,

Advocate was wrongly mentioned as he was appointed in

the Higher Judicial Services and his name was ordered to

be deleted by the order dated 24.9.2012. The applicant

cannot take advantage of its negligence. The respondent

will suffer irreparable loss and injury in case the delay is

condoned. Hence, it was prayed that this application be

dismissed.

4. I have heard Mr. Shashi Shirshoo, learned

Senior Central Government Counsel for the applicant and

Mr. K.D. Sood learned Senior Advocate, assisted by Mr. Het

Ram Thakur, Advocate for non-applicant/respondent No.1.

5. Mr. Shashi Shirshoo, learned Senior Central

Government Counsel submitted that Sh. Baldev Singh was

the counsel of the applicant. He was appointed as an

Additional District Judge. However, this fact was never

conveyed to the applicant and the applicant could not file

the application for restoration. He prayed that this

application be allowed and the delay in filing the

application be condoned.

6. Mr. K.D. Sood learned Senior Counsel

submitted that there was an inordinate delay in filing the

application, which was not properly explained. Therefore,

he prayed that this application be dismissed. He relied

upon the judgments in Krishna Devi and another Vs. Kanta

Devi, CMP(M) No. 1104 of 2018, decided on 23.6.2023 and

CMP(M) No. 871 of 2022, decided on 14.7.2023.

7. I have given considerable thought to the rival

submissions at the bar and gone through the records

carefully.

8. A perusal of the main file shows that the

appeal was filed through Sh. Baldev Singh, Advocate. It is

not disputed that Baldev Singh was appointed as a Member

of Higher Judicial Services. This fact was specifically

admitted in the reply filed by the non-

applicant/respondent No.1. There is nothing on record to

show that any notice was served upon the applicant after

the appointment of Sh. Baldev Singh. The applicant had

engaged a counsel and entrusted a brief to him with the

hope that he would pursue the appeal. It was laid down by

the Hon'ble Supreme Court in Rafiq v. Munshilal, (1981) 2

SCC 788 that in an appeal the presence of the parties is not

required. They trust their Advocate to pursue the matter. It

was observed:-

"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 their 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, rthe 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 not part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they

remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring the justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. 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. Maybe 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 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. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is

not responsible because he has done whatever was possible and was in his power to do so, the costs

amounting to ₹ 200 should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr A.K. Sanghi."

9. Hence, the plea taken by the applicant that

they did not know the dismissal has to be accepted as

correct.

10. In Santosh Kumar(supra), the Advocate of the

party was elevated as a Judge and an actual date notice was

issued which was served but the party did not appear.

Hence, it was held that there was no sufficient cause. In the

present case, no notice was served upon the party and

therefore, the judgment does not apply to the facts of the

present case.

11. In Krishna Devi (supra), the counsel had taken

the certified copy and it was held that it is difficult to