MAN SINGH DECD Vs. GAON SABHA JINDPUR

JUDGEMENT

(1.) The appellants herein claim themselves to be the bhumidar of certain land situated in village Jindpur, Delhi. This claim of the appellants was not accepted by the Revenue authorities, the Revenue Assistant had passed orders dated 31st August, 1974 vesting the land in Gaon Sabha. The appellants were accordingly dispossessed in the year 1974 itself. Challenging the aforesaid orders dated 31st August, 1974 of the Revenue Assistant as well as their dispossession, the appellants preferred Revision Petition which was also dismissed by the Financial Commissioner on 1st April, 1986. Assailing these orders the appellants had preferred W.P (C) 117/1987. In this writ petition, the appellants inter alia averred that on the same issue another Writ Petition (C) 2415/1986 was also pending in this Court in which rule Nisi had been issued. In these circumstances, the writ petition of the appellants was directed to be taken up alongwith Writ Petition (C) 2415/1986 issuing rule in this petition as well.

(2.) When this writ petition came up for hearing in the year 2001, the same was dismissed in default as nobody had appeared on behalf of the appellants. We may note at this stage that the appellants had engaged Mr. G.R. Mata, as their advocate who had filed the said writ petition. Mr. Mata moved an application for restoration of the writ petition, inter alia, stating that he could not appear due to his ailment and had practically given up his practice. However, in the present case, because of lack of communication with the appellants, he could not withdraw himself from the case. The writ petition was restored recalling the order of dismissal. Thereafter, it came up for hearing on 6th September, 2004. The learned Single Judge directed to list this writ petition alongwith W.P(C) 2415/1986 having regard to the earlier orders. On that day, the proxy counsel had appeared on behalf of the appellants. The matter was taken up on 26th October, 2004. The file of W.P.(C) 2415/1986 had been summoned from which it transpires that said writ petition had been dismissed on 23rd July, 2004 for non-prosecution. However, as nobody appeared on behalf of the appellants in their writ petition, this petition was also dismissed for non-appearance on 26th October 2004 taking note of the fact that even earlier also this writ petition was dismissed on 22nd February, 2001. The appellants filed CM Appl. 17274/2011 for recall of the said order. Since there was delay of about seven years in preferring the said application, the same has been dismissed by the learned Single Judge inter alia stating that the application has been filed without explaining as to why their counsel could not appear on 26th October, 2004 when on previous date i.e. 26th September, 2004 proxy counsel had appeared for the appellants. Assailing this order, the present appeal is filed.

(3.) The submission of learned counsel for the appellant is that Mr. Mata was ailing and had not been appearing in the Court. He has drawn our attention to the earlier application for restoration filed by Mr. Mata in which he has stated this fact. He thus submits that the counsel could not appear because of the sickness and insofar as appellants are concerned, since they had engaged the counsel who never informed about his ailment and had not withdrawn from the case, the appellants were under the bona fide impression that the matter is being properly looked after by the counsel. He further submits that Mr. Mata expired on 1st June, 2008 as per the information obtained from the website of Bar Association. His submission is that in these circumstances, the delay should not be the reason for dismissing the application. He has relied upon the following judgments in support of his plea.