M.C.C.No.590/2010
Rishabh Kumar Jain Gulab Rai & others
4.5.2010
Shri Rajesh Nema, counsel for petitioner.
Shri J.K.Verma, counsel for respondents.
This application is filed for restoration of F.A.No.495/2003,
which was dismissed because of non-appearance of appellant on
8.4.2010. It is stated by the petitioner that the counsel for petitioner
could not reach in the Court in time when the case was called and
dismissed in default. It is also stated that there were several motion
hearing matters on the same date and the case number of petitioner
for final hearing was 32. In these circumstances there was some
delay in appearing of counsel before the Court, but the case was
called and dismissed in default. The application is supported by an
affidavit of Shri Rajesh Nema.
Shri J.K.Verma, learned counsel appearing on behalf of
respondents opposed the restoration of First Appeal on the ground
that on earlier various occasions though the case was listed in the
final hearing, but the petitioner had not appeared, so the case was
adjourned and ultimately on 8.4.2010 when the case was called, the
counsel of petitioner was not present, so the case was rightly
dismissed. There is no justified ground for restoration of appeal.
In this case, it is not in dispute that the matter was listed for
final hearing and on various occasions the appellant had not
appeared resulting in adjournment of the appeal. Though on earlier
occasions petitioner had not appeared in the case and the case was
adjourned because of non appearance of petitioner, but fact remains
that a party should not suffer because of negligence on the part of
counsel, as held by the Apex Court in Rafiq & another Vs.
Munshilal & another (AIR 1981 SC 1400).
In these circumstances, in the interest of justice, this
application deserves to be allowed, but on payment of cost, which we
quantify Rs.2,000/- (Rupees two thousand only) payable by the
M.C.C.No.590/2010
Rishabh Kumar Jain Gulab Rai & others
petitioner to the respondent. In case the cost is not accepted by the
respondents, it shall be deposited by the petitioner within a period of
one week in the M.P.High Court Legal Services Authority for the aid of
poor. On payment/deposit of the costs, the petitioner shall furnish
receipt in the office within a period of two weeks and on production
of receipt, office shall restore F.A.No.495/2003 to its number and the
matter be placed before the appropriate Bench for final hearing.
This M.C.C., stands finally disposed of.
(Krishn Kumar Lahoti) (G.S.Solanki)
JUDGE JUDGE
M.