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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7648-7649 OF 2009

[Arising out of SLP [C] Nos. 938-939 OF 2009

Ram Kumar Gupta & Ors. …Appellants

Versus

Har Prasad & Anr…….…..…………………………….Respondents

JUDGMENT

TARUN CHATTERJEE, J.

1. Leave granted.

2. These appeals are filed against the order dated 28th of

December, 2007 passed in Writ Petition (Misc.) Single No.

7361 of 2001 and the order dated 3rd of October, 2008

passed in CLMA No. 6551 of 2008 and MCC No. 1153 of

2008 respectively of the High Court of Uttarakhand,

whereby the High Court had dismissed the Writ Petition

(Misc.)Single No.7361 of 2001 for non prosecution and

rejected the application for restoration of the writ petition

on condonation of delay in filing the same.

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3. The facts of the case are as follows:

The deceased mother of the appellants Smt. Devki Devi was

dispossessed from her shop on account of deceptive acts of her

Manager, namely, Pooranlal Shah who was engaged by her to

run the business of confectionery (Halwai) after the death of

her father. The said Manager got an ex parte order for

declaring vacancy under Section 16(1) of U.P.Urban Buildings

(Regulation of Letting, Rent and Eviction) Act, 1972 (Act No.13

of 1972) and thereafter an ex-parte order for allotment of shop

in question in his favour. The said order was challenged by the

appellants before the High Court of Allahabad and by its

judgment and order dated 9th of January, 1980, the matter

was remitted back to the First Additional District Judge,

Nainital to decide it afresh. After remand, the First Additional

District Judge, Nainital by his order dated 5th of March, 1982,

again upheld the order of declaring vacancy and allotment in

favour of the said Manager. On 25th of May, 1982, the

appellants filed a Civil Misc. Writ Petition No. 5997(A)/1982 in

the High Court of Allahabad challenging the aforesaid order

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dated 5th of March, 1982 passed by the First Additional

District Judge, Nainital. The said writ petition was admitted by

the High Court of Allahabad. Subsequently, on the creation of

State of Uttarakhand, the said writ petition was transferred to

the High Court of Uttarakhand at Nainital and was re-

numbered as W.P.(S)No.7361 of 2001. An application for

substitution of the deceased Smt. Devika Devi was filed which

was allowed by an order dated 17th of December, 2007. The

appellants were thus substituted in place of the deceased Smt.

Devki Devi in the pending writ petition. By a separate order of

the same date, another application filed by the appellants for

the substitution of heirs and legal representatives of deceased

respondent Pooranlal Shah – Manager was also allowed by the

High Court. However, by an order dated 28th of December,

2007, the High Court dismissed the writ petition for non-

prosecution. For restoration of the writ petition dismissed for

non-prosecution, an application was filed by the appellants

through their learned counsel Shri Bindesh Kumar Gupta.

Since Sh. Gupta did not appear at the time the said

application for restoration was listed for hearing i.e. on 26th of

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March, 2008, the said application for restoration was also

rejected by a learned Judge of the High Court for non-

prosecution. Sometime in the month of September, 2008, a

second application for restoration of the writ petition was filed

by the appellants saying that since Sh. Gupta was appointed

as the Additional Advocate General of the State, he could not

appear when the writ petition was taken up for hearing. The

High Court by the order dated 3rd of October, 2008 dismissed

the second application for restoration on the ground of delay

and latches without passing a speaking and reasoned order.

Feeling aggrieved by the order of the High Court rejecting the

writ application for non-prosecution and subsequent order

rejecting the application for restoration, the appellants have

filed two Special Leave Petitions, which on grant of leave, were

heard in the presence of the learned counsel for the appellants

only. At this stage, it may be mentioned that in spite of

repeated services on the respondents, no one had chosen to

appear before us at the time of hearing of these appeals.

We have heard the learned counsel for the appellants and

also examined the materials on record including the two

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orders passed by the High Court, one being rejection of the

writ petition for non-prosecution and the other being the order

of rejection for restoration of the writ petition. The case that

was made out by the appellants for restoration of the writ

petition was that the learned counsel for the appellants Sh.

Gupta could not appear before the learned Judge of the High

Court as at that point of time, he was designated as Additional

Advocate General of the State and for that reason, it was not

possible for him to appear at the time of hearing of the writ

petition as well as for restoration of the writ petition. Keeping

this fact in mind and the fact that the appellants could not be

represented at the time of hearing of the writ petition, we feel it

appropriate to restore the writ petition to its original file in

order to give an opportunity to the appellants to contest the

same on merits. As noted hereinabove, for restoration of the

writ petition dismissed for non-prosecution, an application for

restoration was filed by the appellants which was rejected only

on the ground of delay and latches. But on a perusal and on

proper examination of the record of this case, we find that no

delay was caused by the appellants in filing the application for

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restoration of the writ petition. In any view of the matter, the

appellants cannot be punished for the lapses even if there was

any, as the appellants had engaged a learned counsel to

appear and contest the writ petition. That apart, considering

the fact that the appellants had been prosecuting the litigation

since 1982 diligently and there was no lapse on their part till

the writ petition was dismissed for non prosecution and also

considering the fact that a lawyer was engaged by them to

contest the matter in the High Court who, however,

subsequently was designated as an Additional Advocate

General of the State and, therefore, could not be present at the

time the writ petition was taken up for hearing, we cannot but

hold that it would be improper that the appellants should be

punished for non appearance of the learned counsel for the

appellants at that time as we are of the view that the

appellants were suffering injustice merely because their

chosen advocate had defaulted. In Rafiq & Anr. vs. Munshilal

& Anr. [1981 (2) SCC 788], this Court has also drawn the

same conclusion while considering the application for

restoration of a writ application when the learned counsel for

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the appellant could not be present at the time of hearing of the

application.

In view of our discussions made herein above, we are,

therefore, of the view that both the orders, namely, the order of

rejection of the application for restoration as well as the

application for dismissal of the writ application for non

prosecution are liable to be set aside. Accordingly, both the

orders are set aside and the writ petition is restored to its

original file. However, considering the facts and

circumstances and length of the matter being kept pending in

court, we restore this writ application subject to the condition

that the appellants shall deposit and pay a sum of

Rs.10,000/- as costs to the respondent within two months

from the date of filing of a copy of this order in the High Court.

We make it clear that in the event, the amount of cost, as

indicated above, is not deposited within the time specified

herein, the appeals shall stand dismissed and the impugned

orders shall stand affirmed. In the event, the cost, as

indicated, is deposited within the time specified herein above,

the High Court is requested to dispose of the writ petition at

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an early date preferably within three months from the date of

deposit of the amount by the appellants in the High Court.

The appeals are thus allowed to the extent indicated above.

There will be no order as to costs.

………………………..J.
[Tarun Chatterjee]

New Delhi; …………………………J.

November 18, 2009. [R.M.Lodha]