MAHAVIR Vs. STATE OF U P

JUDGEMENT

(1.) This application has been filed by Mahabir appellant praying that the judgment and order dated 14th November, 1984 dismissing his appeal No. 1014 of 1977 by this Court may be set aside and he may be given another hearing.

(2.) This appeal was filed by Mahabir applicant on 20-5-1977 through Sri P.N. Misra, Advocate who argued it on 14-11-1984 at length. After hearing him and State counsel, the appeal by Mahavir was dismissed. It is now alleged by the applicant in the instant application that Sri S.D.N. Singh, Advocate, was also engaged by him on 13-11-1984 who filed his memo of appearance on November 13, 1984 in the Criminal Section of the High Court, the counter-foil of which was returned to the clear of Sri S.D.N. Singh on November 14, 1984 with an endorsement on the said counterfoil that the aforesaid appeal was pending. However, since the name of Sri S.D.N. Singh did not appear in the cause list on 14-11-1984 he could not appeal in Court on that day when his appeal was argued by Sri P.N. Misra. Before considering the above contention of the appellant, it would be necessary to notice the following facts.

(3.) After the filing of this appeal in this Court on 20-5-1917 by Sri P.N. Misra, it was for the first time listed for hearing on 3-8-1984 before a Bench consisting of Hon. R.B. Lal and Hon. G. B. Singh, JJ. without the name of Sri P.N. Misra. Therefore on that date it was directed to be listed correctly with the name of Sri P.N. Misra as counsel for the appellant. The appeal was then listed correctly for final hearing on 7-8-1984 when it was directed to be listed after 10-8-1984 as the cases of Sri P. N. Misra were adjourned till then. It was, thereafter, listed on 13-8-1984. On that date Sri Satya Prakash, Advocate filed his memo of appearance and moved an application on behalf of the appellant seeking one month adjournment preparing the case. This request of Sri Satya Prakash, Advocate was rejected but it was directed that the appeal be listed for final hearing after three days. Thereafter, the appeal came up for hearing before the Court on 27-8-1984, 29-8- 1984, 31-8-1984, 4-9-1984, 6-9-1984, 11-9-1984 but on each date its hearing was passed over for one reason or the other. On 11-9-1984 the case was directed to be listed after 14-9-1984 as the cases of Sri P.N. Misra were again adjourned till then. At this stage appellant had engaged Sri N.A. Kazmi, advocate also. His cases were also adjourned on account of his protracted illness by Honble the Acting Chief Justice. The appeal was, therefore, listed for final hearing on 19-9-1984. On that date the hearing on the appeal was again adjourned as the cases of Sri N.A. Kazmi were adjourned upto 26-9-1984. The appeal was then listed for hearing on 12-11-1984 but it was again adjourned on that date, it was then listed for hearing on 14-11-1984 on which date it was argued by Sri P.N. Misra, Advocate, on behalf of the Appellant. This Court after hearing him and the learned counsel for the State dismissed the appeal of Mahabir. It may be noted that on that date only Sri P.N. Misra, Advocate had appeared to argue the appeal. The other two advocates viz. Sri Satya Prakash and Sri N.A. Kazmi did not even appear in the Court on 14-11-1984 for assisting Sri P.N. Misra. Their engagements earlier had only served the purpose of getting the appeal adjourned on various dates already mentioned above. Now when the appeal was listed for hearing again on 12-11-1984 it appears another engagement of Sri S.D.N. Singh was made by the appellant who knew that his case would be listed for hearing on 14-11-1984 as it was passed over on 12-11-1984 for that day at his instance. Sri S.D.N. Singh instead of appearing in this case filed his memo of appearance in the office of this Court on that date (and not on 13-11-1984 as wrongly sworn by the appellant in his affidavit). Therefore, the name of Sri S.D.N. Singh could not have been printed in the cause list of the Court on 14-11-1984.