CHAND RATAN MOHTA Vs. COLLECTOR LAND ACQUISITION JAIPUR

JUDGEMENT

(1.) THE facts giving rise to the filing of this Application, briefly stated, are that on 15. 4. 94 when the above noted Appeal was taken up for hearing, neither the appellant nor his counsel was present in court. Shri N. . R. Choudhary, learned counsel for respondent No. 2, was heard and the Appeal was decided by this court on merits.

(2.) BRIEFLY stated the facts of the case are that Rajasthan Government issued a Notification which was duly published on 2. 1. 80 under section 4 of the Rajasthan Land Acquisition Act (for short 'the Act') for acquisition of certain lands situated in Phulera (Jaipur) including 8 bighas of land in Khasra No. 474 belonging to the appellant. After compliance of necessary legal formalities, physical possession of the land in question was taken over on 19. 7. 80 by the Tehsildar, Phulera and handed over to Rajasthan State Industrial Development & Investment Corporation Ltd. (For short 'riico'), Udhyog Bhawan, Jaipur (respondent No. 2 herein) for whose benefit the land was acquired for the public purpose of establishment of industrial estate.

(3.) WITH the above direction, the appeal was disposed of by this court with no order as to costs on 15. 4. 94. On 12. 5. 94 the above application under Section 151 C. P. C. read with Order 41 Rule 19 was filed by the appellants/petitioners through their advocated Shri Samandar Singh, duly supported by an affidavit of Shri B. L. Mandhana, Advocate. The grounds taken in the said application are that neither the appellants nor their counsel Shri Samandar Singh were present in the Court when the appeal was called on for hearing and was decided on merits on 15. 4. 94. It is further contended by the learned counsel for the appellants that in view of Order 41 Rule 17 C. P. C, this court was not empowered to dismiss the appeal on merits but the appeal could only be dismissed for default of the appellant in not appearing before the court. It has been further contended in the said application that dismissal in default under Order 41 Rule 17 C. P. C. can be set aside under Order 41 Rule 19 C. P. C. and the appeal can be re- admitted for hearing. It has been further argued in the said application that the name of counsel for the appellant (Shri Samandar Singh), did not appear in the cause list dated 15. 4. 94 and due to this bona fide mistake he had failed to appear before the Hon'ble court when the appeal was called on for hearing and that his absence was not due to his negligence or carelessness. It has been stated in the said application in para No. 6 that Shri B. L. Mandhana, Advocate had long before withdrawn his power and Shri D. C. Sharma, Advocate, practices in the subordinate courts. Shri Samandar Singh, Advocate, was the counsel in charge. In view of the above circumstances, the appellants prays for restoration of the appeal and for recalling the order dated 15. 4. 94 passed by this court deciding the appeal on merits.