2003(3) ALL MR 546
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

D.S. ZOTING, J.

Nanded Nagarpalika Dukan Vyapari Sanghatana. Vs. Nanded Waghala City Municipal Corp., Nanded.

Appeal From Order No.3 of 2003

21st February, 2003

Petitioner Counsel: Shri. V. G. SAKOLKAR
Respondent Counsel: Shri. M. V. DESHPANDE

Civil P.C. (1908), S.96 - Appeal - Default of counsel - Effect of - Innocent party should not suffer for the inaction, omission or misdemeanour of his counsel - Appeal coming for hearing for the first time, dismissed for default - Dismissal not proper.

It is well known that the party should not suffer for the inaction, omission or misdemeanour of his counsel. It is not a case in which the appellant or his counsel remained absent repeatedly. For the first time, the appeal came up for hearing and on the very day it came to be dismissed in default.

An innocent party, who has done everything in his power, should not suffer for the inaction or misdemeanour of his counsel. In view of this well settled position, it is not desirable in the present matter to allow appellant to suffer for inaction or omission on the part of the counsel. Thus, considering the facts and circumstances, the learned Judge was not justified in dismissing the appeal, especially when the counsel for the appellant filed application for restoration of the said appeal on the same day on which his appeal came to be dismissed in default. Accordingly, appeal deserves to be allowed. AIR 1981 SC 1400 - Followed. [Para 9,12]

Cases Cited:
Rafiq Vs. Munshilal, AIR 1981 SC 1400 [Para 10]


JUDGMENT

JUDGMENT :- Heard Shri.V.G. Sakolkar, learned counsel for the appellant and Shri. M.V. Deshpande, learned counsel for the respondent.

Admit. Taken up forthwith for final hearing with the consent of the parties.

2. This is an appeal preferred against the judgment and order dated 14-11-2002, passed by the learned Additional District Judge, Nanded, below Exh.1 in Regular Civil Appeal No.172 of 2000 thereby dismissing the said appeal in default.

3. Facts relevant for decision of this appeal may be briefly stated as under.

4. Regular Civil Suit No.212 of 1994 was filed for perpetual injunction to restrain the respondent from recovering the property tax from members of the plaintiff's organization. The said suit was dismissed on 23-10-2000.

5. Original plaintiff filed Regular Civil Appeal No.172 of 2000 before the District Court. The said appeal was fixed for hearing on 14-11-2002. It is pertinent to note that the said appeal was posted for hearing for the first time on that date. On that day, the counsel for the appellant did not turn up before the court. As the appellant failed to appear before the court, the appeal was dismissed in default vide order passed on the very day i.e. on 14-11-2002. However, the counsel for the appellant filed application Exh.44 on the very day at 6.30 p.m. for cancellation of the said order for restoring the said appeal for hearing. The said application also came to be rejected vide order dated 5-12-2002 passed by the said court.

6. Thus, as the appeal came to be dismissed in default, the original plaintiff appellant has preferred this appeal challenging the correctness of the order passed by the learned Additional District Judge.

7. In pursuance of the notice issued to the respondent, Shri. Deshpande, advocate appeared on behalf of the respondent.

8. Shri. Sakolkar, learned counsel for the appellant contended that the reason for the absence of the advocate for the appellant is mentioned by the learned counsel for the appellant in the application Exh.44 stating therein that the said counsel failed to note down the date fixed for hearing of the said Regular Civil Appeal No.172 of 2000 inadvertently. It is pertinent to note that no doubt the said appeal came to be dismissed in default on account of failure of the advocate to appear before the court on that date, however, on the very day he filed application for restoration of the said appeal.

9. It is well known that the party should not suffer for the inaction, omission or misdemeanour of his counsel. It is not a case in which the appellant or his counsel remained absent repeatedly. For the first time, the appeal came up for hearing and on the very day it came to be dismissed in default.

10. Shri. Sakolkar, learned counsel for the appellant has relied upon the decision of the Supreme Court in the case of Rafiq Vs. Munshilal reported in AIR 1981 SC 1400. In this case, it is held that an innocent party, who has done everything in his power, should not suffer for the inaction or misdemeanour of his counsel.

11. In view of this well settled position, it is not desirable in the present matter to allow appellant to suffer for inaction or omission on the part of the counsel.

12. Thus, considering the facts and circumstances, I find that the learned Judge was not justified in dismissing the appeal, especially when the counsel for the appellant filed application for restoration of the said appeal on the same day on which his appeal came to be dismissed in default. Accordingly, appeal deserves to be allowed.

13. In the result, appeal is allowed. The order dismissing Regular Civil Appeal No.172 of 2000 in default passed by the learned Additional District Judge on 14-11-2002 is hereby quashed and set aside. Regular Civil Appeal No.172 of 2000 stands restored to its original position before the lower appellate court on costs of Rs.1000/- (Rs.One Thousand Only) payable to the respondent within a period of four weeks from the date of this order. The lower appellate court is directed to dispose of the appeal within a period of two months from the date of receipt of the writ.

Appeal allowed.