Lakhi Narayan Sonowal vs State Of Assam & Anr
- SCC(2016) 14 SCC 514
Ratio decidendi
The rule this decision rests on
Where a court dismisses a case for non-prosecution due to absence of counsel, and the litigant subsequently applies to recall that order on grounds that the counsel's absence was caused by circumstances beyond the litigant's control, the court should exercise its discretion to recall the dismissal order if the litigant establishes a justifiable cause for the counsel's non-appearance, subject to such conditions as the court may impose, rather than summarily rejecting the application merely because the court functioned normally that day or other counsel appeared in other cases. A court should not hastily dismiss a case in default or for non-prosecution when no fault lies at the door of the litigant himself, as it is ultimately the litigant who suffers the consequences of such an order, and the court must exercise due consideration when dealing with applications to recall dismissal orders.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Lakhi Narayan Sonowal .. Appellant(s)
Versus
State of Assam & Anr. .. Respondent(s)
ORDER
Leave granted.
These appeals are directed against two orders, dated 22nd August, 2007 and
17th September, 2007, passed by the Gauhati High Court at Gauhati respectively in
Writ Appeal No. 298 of 2007 and Miscellaneous Case No. 3254 of 2007. By the first
order, the appellate Bench of the High Court dismissed the appeal preferred by the
appellant for non-prosecution as his counsel failed to appear in Court and by the
latter order, application seeking recall of order dated August 22, 2007 has been
dismissed.
It appears that on dismissal of the appeal on August 22, 2007, an application
for recall of the said order was filed on August 24, 2007, wherein it was pleaded that
counsel for the appellant could not appear in Court because of the confusion created
by the Bandh call given by a Socio-political organisation, followed by motor strike,
which
..2/-
C.A. Nos. 2051-2052/2009...contd...
:2:
disrupted the normal life. Rejecting the plea of the appellant, the Division Bench
observed thus :
"On 22.8.07 this Court functioned normally and the learned Advocates appeared in many cases and, therefore, we are not inclined to accept that the learned counsel for the petitioner was prevented by reasons beyond his control.
We see no merit in this application. The application is dismissed."
Hence the present appeals.
We have heard learned counsel for the parties.
It is true that no Court is obliged to adjourn a case because of the difficulty
of a counsel and as a matter of fact it is the solemn duty of every Court to proceed
with the judicial business fixed for the day yet in an appropriate case where no fault
lies at the door of the litigant, the Court should not be in a hurry to dismiss the case
in default or for non-prosecution on account of absence of his counsel. Ultimately, it
is the litigant who is to suffer the consequences of such an order. In any case the
Court should be considerate while dealing with an application for recall of dismissal
or ex-parte order and if a justifiable cause for non-appearance of the counsel is made
out,such an order may be recalled, subject of course to the conditions the Court may
like to impose.
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C.A. Nos. 2051-2052/2009...contd...
:3:
Having perused the application filed by the appellant for recall of order
dated 22nd August, 2007, which has been
placed on record, we are convinced that it was a fit case where the Appellate Bench of
the High Court should have exercised its jurisdiction and recalled the said order,
dismissing the appeal for non-prosecution.
Accordingly, the appeals are allowed, orders dated 22nd August, 2007 and
17th September, 2007 are set aside and writ appeal is restored to its original position
for disposal on merits in accordance with law.
No order as to costs.
...................J. [ D.K. JAIN ]
...................J. [ R.M. LODHA ]
NEW DELHI, MARCH 27, 2009
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