SOBARAN LAL YADAV Vs. DEPUTY DIRECTOR OF EDUCATION

JUDGEMENT

(1.) HEARD the learned counsel for the appellant Sri Ankit Pandey and Sri H.P. Srivastava for the respondents. The writ petition preferred by the appellant challenging his order of dismissal from service was dismissed in default as the counsel could not reach the Court. This order was passed on 20.9.02. Soon thereafter, the application for restoration has been moved giving reasons for not been able to attend the case, duly supported by an affidavit. The ground was that the counsel could not appear because of some inadvertence of the clerk of the counsel in marking the case in the cause list. The learned Single Judge has rejected the said contention after observing that the affidavit of the clerk has not been furnished nor the counsel has filed any affidavit that he had not noted the case listed in the cause list. Even if it is assumed that the counsel for no valid reason was unable to attend the case, the question would arise that whether the litigant can be punished for the fault of the counsel. Needless to reiterate that in the High Court, as the system goes, the appearance of the client is neither necessary nor is required unless directed by the Court. The litigant engages a counsel with full faith and confidence that his interest would be appropriately watched and defended by the counsel. The system of notifying the dates in the cases by publishing the daily cause list, does not permit the counsel to inform each and every client well within time, so that they remain present in the case at the time of call of the case. A counsel is given the cause list daily in the evening and it is difficult for such clients to be informed or to appear in the Court, even if communication has been made by fax, telephone or by any other mode. The responsibility thus, lies upon the counsel to defend the case and to appear in the case. The learned Single Judge has rejected the application for restoration only on the ground that the clerk's affidavit is not there nor the counsel has filed any affidavit to explain his non appearance in the Court on the date fixed. It is also a fact which cannot be ignored that on the day one when the case was dismissed in default, the client was not present and, therefore, he cannot be supposed to tell the fact, which he does not personally know. He is not aware as to why the counsel did not reach the Court. It also cannot be lost sight of, that the High Court is the highest Court of the State and the cases here are required to be decided on merits rather than being dismissed in default, and when an application was moved when the counsel has not put in appearance because of some inadvertence of the clerk of the counsel, the litigant ought not to be punished on such a ground. We do not find that any misrepresentation was made by the counsel. As a matter of fact, he gave the correct facts in the affidavit. The order passed in the writ petition dated 20.9.02 is set aside. The writ petition is restored to its original number. List the writ petition before the learned Single Judge having jurisdiction, immediately after vacations, in the month of July, 09. The special appeal is allowed. No order as to costs.