Labh Singh, Accountant (Under suspension) vs Ministry of Defence, Govt. of India

N.K. Kapoor, J.—This appeal is against the order of the learned Single Judge dated 17.5.1990 dismissing the appellant''s application under Order 9 Rule 9 read with Section 151 CPC for recalling the order dated 20.9.1988 and for restoring the petition and hearing the same on merits.

Matter in dispute lies within a narrow compass. Appellantthe petitioner filed a writ petition bearing No. 3327 of 1979 passed by Director of Medical Services. During the pendency of the petition prayer to amend the petition was made. Prayer for amendment was allowed by the Court vide order dated 19.5.1986 subject to cost of Rs. 200/. This amended petition was to be filed within 10 days with an advance copy to the respondents. On 20.9.1988 none put in appearance for the petitioner whereas respondents were represented by Shri G.S. Chawla, Advocate. It was stated by the counsel for the respondents that the earlier order allowing the amendment of the writ petition has not been complied with as neither the amended petition has been filed nor costs have been paid to him and so the petition deserves to be dismissed. The learned Single Judge finding substance in this contention dismissed the petition for nonprosecution.

With a view to get the order of dismissal recalled an application was filed under Order 9 Rule 9 read with Section 151 CPC, which was dismissed being belated and there being no ground for condonation of delay.

Learned counsel for the appellant has argued that the order dated 20.9.1988 was passed by the learned Single Judge on misconception of facts. According to the counsel, a perusal of the original record of writ petition is by itself sufficient to prove that the petitioner while seeking amendment of the petition filed amended petition along with the same. In fact, amended writ petition bears the date as 9.2.1986. As regards the payment of costs to the counsel for the Union of India, this amount was paid to the Senior Standing Counsel representing Union of India, as is clear from the receipt on the file. With a view to verify this factual position, we have scanned file of civil writ petition No. 3327 of 1979 and finding that the amended petition in fact was on record even before the actual date when such an amendment was allowed by the Court on 19.5.1986. Similarly, the amount of cost had already been paid to the Senior Standing Counsel for the Union of India. It appears that wrong facts were brought to the notice of the Court which led to the dismissal of the writ petition as counsel for the petitioner somehow did not put in appearance on the date fixed. Had the counsel put in appearance the appellant would have been spared from this agony of approaching the Court for restoration and thereafter filing an appeal. Since we have found that the writ petitioner had complied with the order of the Court dated 19.5.1986 in entirety, dismissal order dated 20.9.1988 and the subsequent order dismissing the application for restoration dated 17.5.1990 deserve to be set aside.

Accordingly, we accept the appeal, set aside the order dated 20.9.1988 and order 17.5.1990 and restore the writ petition to its original number. Appeal was admitted by the Bench. Matter is pending for the last so many years and so we deem it proper that the same be disposed of without any further delay and preferably within a period of six months from the passing of the order.