RAKESH CHANDRA SHUKLA Vs. UNION OF INDIA

JUDGEMENT

(1.) We have heard learned Counsel for parties and perused the pleadings of special appeal 2. It appears that the appellant filed Writ Petition No. 7269 (SS) of 2010 praying for direction to Union of India and Chief of Army Staff to enroll him as a member of armed force and to send him on training. It also appears that during the pendency of said writ petition the appellant was advised by his Counsel to withdraw the writ petition with liberty to file a fresh one. Appellant acting upon his Counsel's advice moved CM. Application No. 33104 of 2011 (Application for with-drawl of writ petition with liberty to file a fresh one). Vide order dated 29.3.2011, learned Single Judge passed the following order:

(2.) As the writ petition could not be adjudicated on merit in view of the application for withdrawal of writ petition without granting liberty to file a fresh one, the appellant, in a desperate move, filed review petition (No. 52 of 2012) which was dismissed by the impugned order dated 15.2.2012 based on an elaborate discussion with special reference to grounds available for filing a review petition. Nonetheless, the fact remains that the cause of action has remained un-adjudicated and if door of the Court is closed even though it is an intra Court appeal then it would result in miscarriage of justice. Besides this special appeal challenging the impugned order is supported by two affidavits wherein the appellant has prayed for justice, a cause, which in our opinion should not be made to suffer on the ground of lack of communication between the Counsel and the client or improper/wrong advice. In a judgment in Board of Control for Cricket in India and another v. Netaji Cricket Club and others, 2005 4 SC 741, Hon'ble the Apex Court has held that the words "sufficient reason" in Order XLVII, Rule 1 of the C.P.C. are wide enough to include a misconception of fact or law by the Court and even the Advocate. Thus, Hon'ble the Apex Court held that the application for review was necessitated in the facts and circumstances of the case by invoking the doctrine of "actus curiae neminem gravabit". In view of all the aforesaid we set aside the orders dated 15.2.2012 and dated 29.3.2011 passed in review petition and application for withdrawal of writ petition respectively. Consequently the writ petition is restored to its original number and status with a request to learned Single Judge to consider the matter afresh on merit. The Special appeal, thus, stands disposed of.