NAGENDRA KUMAR Vs. SUBE SINGH

JUDGEMENT

(1.) THIS application has been made for restoration of the petition, which was dismissed for non-prosecution vide order dated 21. 11. 2007. This petition was filed in November, 2006 and was listed before this Court on 6. 11. 2006. None appeared for the petitioner on that day however, this Court admitted the petition and issued notice to the respondent. The Court also restrained the respondent from alienating, transferring or parting with the possession of the property. The matter was fixed for 19. 2. 2007. Again, none appeared for the petitioner on that day and the matter was re-listed on 8. 8. 2007. On 8. 8. 2007 again, none appeared for the petitioner while counsel for the respondent put appearance. The matter was re listed on 21. 11. 2007. Again, none appeared for the petitioner on that day while Counsel for the respondent was there and this Court observed that nobody had been appearing on behalf of the petitioner since the petition came up for preliminary hearing in spite thereof ex-parte interim order was passed in favour of the petitioner but none appeared for the petitioner on that day and the Court dismissed the petition.

(2.) IN the application for restoration, the petitioner has taken the stand that on 6. 11. 2007, the previous counsel informed the petitioner that an ex parte stay had been granted and he got an impression that his counsel was prosecuting the case. Afterward, as and when the petitioner contacted his previous counsel, he was informed that matter was pending adjudication and it was likely to be decided in his favour. The counsel also informed that there was no necessity of petitioner's personal appearance. It is submitted that being a semi literate man, he believed the assurance of his counsel that the case was pending. On 21. 11. 2007 when petitioner enquired about the next date of hearing, his previous counsel told him that he could not appear on that day in the Court. On 22. 11. 2007, the petitioner came to Registry and enquired about the case and was told that the case had been dismissed in default. The petitioner then contacted his previous counsel in his office and he was informed that the counsel was not keeping well for the last few months especially after the demise of his younger daughter, who was also a practicing advocate and was suffering from cancer. The petitioner stated that he was much aggrieved and he would have filed a complaint against the previous counsel but due to this reason he did not file a complaint and he has stated that his non-appearance in the petition was bonafide and sought restoration of the petition.

(3.) THE application has been opposed by the respondent, who denied the averments made by the petitioner. It is averred that the petitioner was a regular litigant and was litigating in many cases pending in various courts. He was fully aware that he was supposed to appear in the case and was to prosecute the case. It is submitted that daughter of petitioner's previous counsel had expired two years prior to the filing of petition. Even the brief of the case was accepted by the Counsel after the death of his daughter and the assertions that his counsel was not keeping well were also not true. It is argued that it was a concocted, false and frivolous story and the application was abuse of law.