MUNICIPAL CORPORATION Vs. PHOOL KAUR

JUDGEMENT

(1.) This appeal is directed against the order of the learned first appellate Court refusing to recall the order dismissing the appeal for non-prosecution.

(2.) The facts : The appeal was dismissed in default on May 20, 1986. An application to recall the said order was moved on May 26, 1986. It was stated in the application that the counsel for the appellant was busy in some other Court when the case was called and dismissed for non-appearance of the appellant or its counsel. The application was supported by an affidavit and Shri Paramjit Singh, an Inspector working in the Municipal Corporation, Jalandhar, deposed on similar lines at the trial of the application. The application was rejected by the learned appellate Judge on the ground that it was not proved that the appellant or its counsel failed to appear in the Court for reasons which were beyond their control.

(3.) The entire approach of the learned appellate Judge is faulty. The explanation furnished by the appellant for non-appearance of their counsel in Court on the date fixed cannot be held to be improbable. It is not improbable that when the case was called, the counsel was busy in another Court. No indication is available on record that the application for recalling the order dismissing the appeal in default was lacking in bona fides. Rules of procedure are intended to be a hand-maid to the administration of justice. In an adversary system of litigation where the parties are dependent upon their counsel for prosecuting the litigation, the parties get accustomed to depend upon their counsel for day-to-day hearing in the lis and if on a given date, the counsel is unable to appear being busy in some other Court, the party cannot be penalised. The other party could be adequately compensated by awarding costs.