GAURI SHANKER Vs. IIIRD ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) This review petition is directed against the judgment/order dated 17.9.1997 passed by a learned Single Judge of this Court whereby this Court rejected the restoration application and also against judgment/order dated 7.10.1994 by which second appeal No. 1396 of 1982 was dismissed for default of Sri B.P. Singh, learned Counsel then appearing for the appellant.

(2.) Aforestated Second Appeal had been instituted in this Court in the year 1982 against the judgment and order dated 29.1.1982 passed by IIIrd Additional District Judge Ballia. Subsequently, the appeal came to be dismissed for default on 7.10.1994. This gave rise to filing of restoration application, which was also rejected, on 17.9.1997. Thereafter, the matter travelled to Apex Court and the Special Leave petition preferred before the Apex Court also came to be dismissed in limine on 22.12.1997. It is in the above backdrop that review petition has come to be filed before this Court on the strength of oral observation of the Apex Court as revealed from the letter of the Counsel appearing for the appellant in the Apex Court that the appellant should go back to the High Court for appropriate relief.

(3.) The grounds set out in the review petition boil down to the effect that Sri B.P. Singh, learned Counsel appearing for the appellant in this Court could not appear before the Court on 7.10.1994 as he was in the midst of arguments before Court No. 38 at that time and after he had finished his arguments before Court No. 38, he rushed to the Court in the course of the day and explained his absence and wanted to move application setting out the details about his absence but the Court declined to accept the application and insisted on presenting proper application alongwith affidavit. It is further set out that thereafter Sri B.P. Singh, learned Counsel sent intimation to the appellant in this regard who reacted by withdrawing his instructions from Sri B.P. Singh and in his place, engaged another Counsel. Sri L.P. Singh who subsequently represented the appellant, moved application shorn of details about absence of the Counsel on the date as he was not the Counsel nor was he aware of what had transpired between him and the Court at that time. The learned Counsel for the appellant stated that it was a new and important piece of evidence, which could not be brought to the cognizance of the Court. It is also set out in the review petition that the appellant had engaged the Counsel and if he failed to appear before the Court, the appellant could not be visited with penalties of dismissal of second appeal for default of his Counsel. It is further set out that as many as three Counsel were displayed to be representing the appellant but as a matter of fact Sri B.P. Singh alone had been instructed to argue the case to the exclusion of other Counsels and since absence of Counsel has been duly explained in the affidavit filed alongwith review application, it furnishes foundation for review as envisaged under Order XLVII, Rule 1 C.P.C. The learned Counsel further submitted that as the case fell within the periphery of grounds enumerated under Order XLVII, Rule 1 C.P.C. i.e. upon discovery of new and important matter which could not be produced by him at the time when earlier application for recall was filed, the order impugned herein is apt to be reviewed. The learned Counsel also canvassed that order dated 17.7.1997 rejecting restoration application cannot by any reckoning be said to have merged with the order dated 19.12.1997 rejecting the Special Leave to Appeal nor the same can be construed to be binding in terms of provisions of Section 141 C.P.C. or principles of resjudicata and therefore, it has been lastly argued, the review petition is maintainable.