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Judgment
Kaul, J.
One of the learned Benches of this Court disposed of writ petition No; 808/1984 preferred by the present appellant by his order dated I7.8.I987
which reads as under:
Mr. S. Hali.
Learned counsel for the petitioner submits that he has instructions not to prosecute the petition any further. The petition, under the circumstances is
dismissed for non prosecution. Interim directions are vacated.
Against the said order, a restoration application No. 39/87 was preferred by the learned counsel for the appellant/petitioner, Mr. Sunil Hali, and
that application also was dismissed on 391987 and the order passed on that restoration application is as under :
S. Hali
I am not satisfied that any good ground has been made out to grant the prayer. The application is accordingly dismissed.
Aggrieved of the said judgment and order dated 391987, the appellant preferred this Letters Patent Appeal saying that the learned Single Judge
has not properly applied his mind nor bad he disclosed the same in the order impugned. The order passed by the Single Judge is not a speaking
order and it does not indicate as to how the application for restoration did not contain a good ground for the restoration of the writ petition; that the
learned Single Judge was under an obligation to have passed a reasoned and speaking order particularly when an order dismissing an application
for restoration was appealable in the Division Bench and dismissal of the application was bound to visit the appellant with civil consequences; that it
is well settled that any order which is appealable before the High Cour1 must be a reasoned and speaking order for otherwise the appellant is
handicapped in judging its validity in such an appeal; that the impugned order falls short of the requirement of law and does not disclose any reason
whatsover except stating that the application does not make out any good ground; that in the appellant having engaged a counsel for prosecution of
a writ petition could not be penalized for any default on the part of the counsel appearing and prosecuting the case; that the writ petition being in a
nature of civil proceedings would not require the personal appearance of the appellant on every date of hearing; that the appellant was under a
bona fide belief that he had made adequate arrangements for the prosecution of the writ petition and that the counsel was deligently prosecuting the
same as and when the matter was listed before the Court. It is well settled that a default committed by counsel, engaged for the case, cannot be a
valid basis for penalizing the litigant concerned. Assuming, therefore, that the counsel for the appellant had committed any default in prosecution of
the writ petition in question, the same was not sufficient to penalise the appellant by refusing to restore the writ petition, when an application for
restoration of the same was filed. The appellant was told by his counsel Mr. Sunil Half that he had told the court that he had no instructions in the
writ petition. However, his statement recorded is exactly the converse that the counsel had instructions not to prosecute the writ petition; that in the
background of the case stated hereinabove, the learned Single Judge was in error fur refusing restoration of the writ petition, hence it was prayed
that the impugned judgment and order dated 391987 whereby the application of the dismissed writ petition No 808/84, was dismissed, may kindly
be set aside and the petition and connected applications restored to its original number.
Heard Mr. T.S. Thakur, learned counsel appearing for the appellant, Mr. Kaul, Govt. Advocate, appearing for the respondents; and also have
gone through the record of the case minutely.
Two questions which arise for the consideration of this Court are that:
i) Whether the appellant whose, case, for default of his counsel, has been dismissed, should be allowed to suffer for misdemeanour or inaction of
his counsel ? and
ii) Whether the application of the appellant for restoration of the appeal, dismissed by the learned Single Judge observing that no good ground has
been made out to grant the prayer, could amount to a speaking order, and if not whether, therefore, the summary dismissal of the said application
by the learned Single Judge was liable to be set aside ?
With regard to first question the learned counsel for the appellant, Mr. Thakur, produced a sworn affidavit of Shri Sunil Hali Advocate, dated
7101987 in which he has stated that he had made a statement in the court that he has no instructions in the matter because the client (appellant)
could not contact him, He, however, never stated that he had instructions from his client (appellant) not to prosecute the matter, as stated in order
dated 17887. As this was matter of fact to be looked into by the learned Single Judge therefore, the learned Single Judge could not dispose of the
matter summarily without revealing the reasons for summary dismissal in the absence of a brief statement of reasons,
In this regard it is material to make mention of AIR 1981 J&K 95, wherein the Full Bench of this Court has held that it is difficult to lay down
any inflexible rule on the question whether a litigant can be held responsible for the negligence of the counsel. Each case must be decided on its
own facts, generally speaking a litigant will not be responsible for the negligence of his counsel, unless there has been any remissness on the part of
the litigant himself.
In the same manner it has been held in AIR 1981 SC 14CO 'that a party who, as per the present adversary legal system, has selected his
Advocate, briefed him and paid his fee, can remain supremely confident that his lawyer will look after his interest and such an innocent party who
has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel"".
In view of the aforesaid rulings, it becomes manifestly clear that a party who has engaged a lawyer and had preferred him and paid his fee,
should remain confident that his lawyer will look after his interests and what would be the fault of a party who having done every thing in his power,
is allowed to suffer because of the default of his Advocate.
In the case on hand, Mr. Sunil Hali, who had no contact with his client could easily say that he had no instructions to prosecute the case on
behalf of the appellant but instead he is stated to have said that he has instructions rot to prosecute the petition any further. He disclaimed this
assertion of his statement in his aforementioned affidavit and has categorically sated that he had stated before the Court that he had no instructions
to prosecute the petition en behalf of the petitioner/appellant. We understand that his submissions got inadvertently misquoted in the order, which
says that he had instructions not to prosecute the petition any further on behalf of the appellant.'
The disturbing feature of the case is that the learned counsel for the appellant/petitioner, who has appeared for the appellant generally was under
an obligation to prosecute the case after he was selected by the appellant as an Advocate and was preferred and paid the fees demanded. It
appears that the appellant who hails from Punjab could not meet his lawyer for a long time, therefore, the counsel thought it that the appellant was
not interested in the prosecution of the case and made a statement that he had no instructions to prosecute the petition and under no stretch of
imagination he could say that he had instructions not to prosecute the petition. If that would have been the case, he would have never come up with
an affidavit to dislodge his statement and make an application for restoration of the writ petition dismissed by the learned Single Judge. Even if it is
assumed, but not presumed, that Mr. Hali made a statement that he had instructions not to prosecute the case and if on that score, the Letters
Patent Appeal is dismissed, as Mr. Kaul, GA, invited us to do so, the only one who would suffer would not be the lawyer who made such a
statement, but the party whose interest he represented. The problem with which we are faced is whether it is proper that the party should suffer for
the deliberate inaction, omission or misdemeanour of his agent. The answer obviously is in negative. May be that the learned Advocate made such
a statement before the learned Single Judge deliberately or unintentionally but there is no proof or material on the record of the file in ascertaining
that aspect of the matter, rather the very statement of the lawyer contained in the dismissal order dated 17 8.1987, is belied by the affidavit dated
7.10.1987 to have been filed by Mr. S. Hali.
We can't be a party to an innocent party suffering for justice merely because his chosen Advocate defaulted. Therefore, we hold that no party
can be held responsible for the inaction, deliberate omission or misdemeanour of a lawyer on whose behalf the case gets dismissed, especially in
the circumstances when the chosen lawyer earliar had not defaulted on behalf of his client.
With regard to the second question, it was urged by Mr. Thakur that the order passed by the learned Single Judge is a cryptic application,
when the learned Single Judge has in one line stated that no good ground was made out to grant the prayer.
been authoritatively held in AIR 1975 SC 773, that the High Court was wrong in rejecting the petition in limine and the petition should be
remanded for admitting it and issuing a rule nisi. This view carries more weight in AIR 1986 SC 1497, wherein the Division Bench of the Hon'ble
Supreme Court has held as under:
In a hierarchical system of Courts which exists in our country, all courts and tribunals including the High Court exercing judicial and quasijudicial
functions owe it a duty to pass reasoned orders. There is a growing tendency in some of the High Courts to dismiss petitions filed under Art. 226
or 227 of the Constitution in limine without a speaking order just by the use of a laconic word ""rejected"" or ""dismissed"". Quite often the Supreme
Court has decreed that while dismissing; a writ petition summarily, the High Court must record reasons briefly. The High Courts have to follow the
law laid down by the Supreme Court which, indeed, is obligatory upon them under Art.141 of the Constitution. A brief statement of reasons would
greatly assist the Supreme Court in understanding the High Court's thought process which, in turn facilitates a quick and satisfactory disposal of the
Special Leave Petitions.
From these two authoritatively pronouncements of the Apex Court, it becomes manifestly clear that all the courts including the High Court should
give a brief statement of reasons for forming an opinion for the dismissal of a case and the High Courts have to follow the law laid down by the
Supreme Courts which indeed is obligatory upon them under Article 141 of the Constitution. A brief statement of reasons would generally assist
the Supreme Court in understanding the High Court's thought process which in turn facilitate a quick and satisfactory disposal of the Special Leave
Petitions,
On the above mentioned rulings it is clear that no order of dismissal could be passed by the learned Single Judge summarily and he had to
provide the reasons in his order as to why the application of restoration did not satisfy him, as to how no good grounds were put forth by the
appellant/petitioner for restoration, when he had clearly submitted in his application for restoration that he belongs to Punjab and as his business
activities were spread in various parts of country, therefore, he could not contact his lawyer as a result of which his petition got dismissed for non
prosecution.
Inthis context of the case, we refrain from expressing our opinion whether the impugned order was correct or not, but can safely say that we
have been in difficulty in unrevealing the reasons for summary dismissal of the restoration application in absence of brief statement of reasons to
have been provided by the Learned Single Judge, in his judgment and order dated 3.9.1987. Even though substantial questions of fact were raised
in the restoration application, but the learned Single Judge in one line has disposed of the application by saying that no good ground was made out
to grant the prayer and dismissed the application summarily and the same was liable to be set aside.
Hence the Letters Patent Appeal is allowed. The impugned judgment and order dated 3.9.1987 is set aside The restoration application is also
allowed and the original writ petition no. 808/84 is restored to its original member on payment of Rs 10"")0/ as costs to the other side. On payment
of costs, the restored writ petition be lited for further proceeding, LPA is disposed of accordingly.
The said Letters Patent Appeal is accompanied by CMP No, 49/92 upon which adjudication is sought with regard to the adinterim direction to
the respondents to supply the appellant/petitioner the balance quantity of Oleo Resin due to him for years 198384, 198485 and 198586.
According to the appellant/petitioner this Court by an interim order dated 22.121987 had directed the respondents to supply to the
appellant/petitioner the balance quantity of oleo resin for the above mentioned years according to the entitlement of petitioner/appellant as ordered
in Annexure P 1, which is an interim direction to have been granted by this Court, which reads as under:
Mr. T. S. Thakur for the appellant Issue notice of the Civil Misc. petition to the respondents returnable within four weeks. Meanwile subject to
the availability of the material the appellants shall be supplied balance quota of Crude Oleo Gum by the Chief Conservator of Forests Jammu, for
the years 198384, 198485 according to entitlement of the petitioner prior to the enforcement of the Rosin Nationalization Act on the same terms
and conditions as is granted to M/S Sood Bine Industries and Kiran Rosin and Turpentine Factory, Samba. The order shall remain subject of the
objections from the other side,
Jammu: 22.12.1917 sd/ Hon'ble Judges
According to the petitioner/appellant despite the said court order the supplies of the balance quantity of the material was not supplied to the
petitioner/appellant with the result that a contempt petition came to be filed in this Court, being Contempt Petition No 61/1991 in which after the
issuance of a notice an order was pissed by the Court as mentioned in Annexure P ?, which for short reads as under:
As agreed to by the learned counsel for the parties, we direct that the stock of Oleo Resin with the respondents (About 1500 Metric Tonns) shall
be distributed on prorata basis in proportion to the entitlement of various claimants who had obtained court orders, to satisfy their claims to the
past arrears as directed by this court in earlier order passed in COA (W) No. 105/'99I and WP No. 468/1991.
With these directions the petition stands disposed of and the rule is discharged.
In compliance of that order the appellant/petitioner was supplied 286 M, Tons of Oleo Resin by respondents as against a total of 622 M. Tons
due to him. Thus there remains a further quantity of 336 M. Tons of Oleo Resin due to the appellant/petitioner. That the supply of arrears for the
aforesaid years was made possible by reason of nonlifting of the material by the medium scale unit under the name and style of M/S Pine
Chemicals Ltd; that during the current crop year 199192 again M/S Pine Chemicals Ltd. did not lift the material due to it and that surplus remained
in the hands of the Government in terms of the order passed in that behalf; that the aforesaid excess is like the previous years liable to be utilized
for the satisfaction of the balance arrears claims of the appellant and the Govt. is not entitled to arbitrarily allot the said material to any unit nor can
the government refuse to satisfy the arrear of other Units have been satisfied by it. It was, therefore, prayed claims of the appellant petitioner while
similar claims that pending disposal of the appeal by this Court, the respondents may by directed to supply the balance quantity of Oleo Resin as
mentioned above due to the appellant/petitioner for the above mentioned years to the tuna of 355 M. Tons out of the quantity available with the
Government representing the Share of M/S Pine Chemicals Ltd. which remains unlifted by the said unit.
In the CMP notice was issued to other side who filed their objections and the CMP of the appellant/petitioner was controverted on the
grounds that prior to year 1986 the Resin extracted from the State Forest was distributed and allotted to various boils in the State by the Indus
tries Department J&K. Jammu and the raw material was released by the Department m accordance with the said allocation; that over the years the
extraction of the resin has been reduced considerably in the interest of preservation of forest as such consequent supply to the various Units had to
be decreased proportionately. The quota of M/s Pine Chemicals having remained unclaimed has reverted back to the respondents. That the State
Government had reviewed the performance of JKI Ltd, in resin and turpentine sectors and the said Undertaking was found to be allotted less
quantity of material even though the processing capacity of its three units cumulatively amounted to 14000 Mt. Tonnes annually. Further more said
public sector unit required boost to augment its resources. Based upon these considerations it was decided by the Government that 15% annual
quota of M/s Pine Chemicals Ltd. Should be allotted to JKI Ltd. There by increasing its quota from 45% to 60% annually. The said decision being
reasonable and for valid considerations, the said quantity cannot be claimed by any other Unit.
On the perusal of the material on record and also taking into consideration the admitted position of the parties, it is found that through the
medium of various writ petitions the interim arrangement for supply of stocks of Oleo Resin was directed to be distributed on prorata basis in
proportion to the entitlement of various claimants to the past arrears. The appellant had also sought the orders from the court according to which
be was entitled to 622 Mt. Tons of Olea Resins for the years 198384, 198485 and 198586 of which only 286 Mt. Tons of Oleo Resin was
supplied to him and a quantity of 363 Mt. Tons remained due to him. Then Hon'ble Supreme Court in writ petition No. 751/86 provided a
guideline as to how the stocks of resin could be supplied to JKJ Ltd and the other Private Units and it was observed that the allocation should be
done in the following way :
JKI Ltd. 45%
Pine Chemicals Ltd. Jammu 15%
Dujodwala Resin & Terpenes (P) Ltd. Jammu. 10%
Prabhat Terpenes & Synthetics (P) Ltd. Jammu. 10%
Other small scale Units 20%
It indicates that every year, out of the available stocks of Oleo Resin with the Forest Department, the 45% of it required to be supplied to JKI Ltd
and the other stocks was to be supplied to other Private Units in the manner mentioned hereinabove. It is an admitted fact that M/s Pine Chemicals
Ltd. have stopped to receive the supply of Oleo Resin for the last many years and this stock has fallen surplus with the Government and the same
instead of being supplied proportionately to the other Units has been allotted to JKI Ltd. by the respondentState. According to Mr. R. Kaul, GA,
the Government in a meeting under the Chairmanship of the Chief Secretary on 2031991 has taken a decision that the 15% of the annual quota
earlier earmarked for M/s Pine Chemicals Ltd., now dosed, be released in favour of the JKI Ltd., thereby increasing the JKI,s annual quota to
60% from the present level of 45%. Although JKI Ltd. was in arrears of sales tax in the amount of 14crores, but even then in the High Level
Meeting, it was desired that the quota be given to such Unit although it had not been earlier able to make clearance of the previous years quota on
account of the fact that there were pending sales tax arrears with such organisations. Once the JKI Ltd has not been able to exhaust the at nuai
quota earlier earmarked for it no good sense is made cut as to why its quota has been raised from 45 to 60 percent and thereby deliberately the
other Private Units, including that of the petitioner/appellant's unit, has teen disabled to receive the previous quota of arrears on prorata basis from
the Government. The respondents in no way could go against the judgment of the Supreme Court whereby it has been authoritatively held that JKI
Ltd. is entitled to 45% of the Resin annually available with the Forest Department and rest of it is lo be distributed amongst the other private units.
Once M/s Pine Chemicals Ltd. has stopped to receive the supply from the department the 15% of the Olea resin allotted to it could therefore be
proportionately distributed amongst the other Units in accordance with the norms and the directions of the Hon'ble Court, on prorata basis. No.
good ground has been made out by the respondent State, in any manner to show that the JKl Ltd is entitled to more supply than the other Units
especially in the circumstances when it is in arrears of 14 crores and is not also able to make good the sales tax for the years 198687 as well. No
special treatment is required to be given to this Unit as it is not entitled to 15% rise in its supply, which quota earlier was available to M/s Pine
Chemicals Ltd.
Hence it is ordered that the 15% of the Oleo Resin earlier earmarked for M/s Pine Chemicals Ltd. for the last few years since it has it to
receive the supply, be distributed amongst all the Units including JKI Ltd. with regard to their old arrears proportionately as per their share fixed by
the Hon'ble Supreme Court as mentioned hereinabove on prorata basis and it be distributed amongst them accordingly in future as will till disposal
of the restored writ Petition No. 808/1984.
With the aforesaid directions, the CMP No. 49/92 also stands disposed of.