Municipal Corporation, Jalandhar vs Phool Kaur and others

G.R. Majithia, J.

This appeal is directed against the order of the learned first appellate Court refusing to recall the order dismissing the appeal for nonprosecution.

The facts : The appeal was dismissed in default on May 20, 1986. An application to recall the said order was moved on May 26, 1986. It was stated in the application that the counsel for the appellant was busy in some other Court when the case was called and dismissed for nonappearance of the appellant or its counsel. The application was supported by an affidavit and Shri Paramjit Singh, an Inspector working in the Municipal Corporation, Jalandhar, deposed on similar lines at the trial of the application. The application was rejected by the learned appellate Judge on the ground that it was not proved that the appellant or its counsel failed to appear in the Court for reasons which were beyond their control.

The entire approach of the learned appellate Judge is faulty. The explanation furnished by the appellant for nonappearance of their counsel in Court on the date fixed cannot be held to be improbable. It is not improbable that when the case was called, the counsel was busy in another Court. No indication is available on record that the application for recalling the order dismissing the appeal in default was lacking in bona fides. Rules of procedure are intended to be a handmaid to the administration of justice. In an adversary system of litigation where the parties are dependent upon their counsel for prosecuting the litigation, the parties get accustomed to depend upon their counsel for daytoday hearing in the lis and if on a given date, the counsel is unable to appear being busy in some other Court, the party cannot be penalised. The other party could be adequately compensated by awarding costs.

In the instant case, the party has been made to suffer for the fault of its counsel, which should not have been done. The application for recalling the order dismissing the appeal in default was moved within five days of the dismissal of the appeal in default. Negligence, inaction or mala fide cannot be attributed to the appellant.

The order under challenge cannot be sustained. The same is quashed. The application for recalling the order dated May 20, 1986 dismissing the appeal in default is allowed on payment of Rs. 1,000/ as costs. The appeal will stand restored to its original number. The parties through their counsel are directed to appear the appellate Court on July 27, 1990, which shall dispose of appeal expeditiously.