IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 2051-2052 OF 2009
(Arising out of SLP(C) Nos. 2135-2136/2008)
Lakhi Narayan Sonowal
.. Appellant(s)
Versus
State of Assam & Anr.
.. Respondent(s)
ORDER
Leave granted.
These appeals are directed against two orders, dated 22nd August, 2007 and
17th September, 2007, passed by the Gauhati High Court at Gauhati respectively in
Writ Appeal No. 298 of 2007 and Miscellaneous Case No. 3254 of 2007. By the first
order, the appellate Bench of the High Court dismissed the appeal preferred by the
appellant for non-prosecution as his counsel failed to appear in Court and by the
latter order, application seeking recall of order dated August 22, 2007 has been
dismissed.
It appears that on dismissal of the appeal on August 22, 2007, an application
for recall of the said order was filed on August 24, 2007, wherein it was pleaded that
counsel for the appellant could not appear in Court because of the confusion created
by the Bandh call given by a Socio-political organisation, followed by motor strike,
which
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C.A. Nos. 2051-2052/2009...contd...
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disrupted the normal life. Rejecting the plea of the appellant, the Division Bench
observed thus :
"On 22.8.07 this Court functioned normally and the learned
Advocates appeared in many cases and, therefore, we are not inclined to
accept that the learned counsel for the petitioner was prevented by
reasons beyond his control.
We see no merit in this application. The application is
dismissed."
Hence the present appeals.
We have heard learned counsel for the parties.
It is true that no Court is obliged to adjourn a case because of the difficulty
of a counsel and as a matter of fact it is the solemn duty of every Court to proceed
with the judicial business fixed for the day yet in an appropriate case where no fault
lies at the door of the litigant, the Court should not be in a hurry to dismiss the case
in default or for non-prosecution on account of absence of his counsel. Ultimately, it
is the litigant who is to suffer the consequences of such an order. In any case the
Court should be considerate while dealing with an application for recall of dismissal
or ex-parte order and if a justifiable cause for non-appearance of the counsel is made
out,such an order may be recalled, subject of course to the conditions the Court may
like to impose.
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C.A. Nos. 2051-2052/2009...contd...
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Having perused the application filed by the appellant for recall of order
dated 22nd August, 2007, which has been
placed on record, we are convinced that it was a fit case where the Appellate Bench of
the High Court should have exercised its jurisdiction and recalled the said order,
dismissing the appeal for non-prosecution.
Accordingly, the appeals are allowed, orders dated 22nd August, 2007 and
17th September, 2007 are set aside and writ appeal is restored to its original position
for disposal on merits in accordance with law.
No order as to costs.
...................J.
[ D.K. JAIN ]
...................J.
[ R.M. LODHA
]
NEW DELHI,
MARCH 27, 2009