Abdul Rashid No.366/CID & Others vs State of J & K

This restoration application has been commenced by applicants No.5, 12 and 15 through their advocate, Mr. M. M. Khan, praying that SWP

No.519/87,which stood adjudged and disposed of in favour of petitioner No.1 in the writ petition only, and to the exclusion of applicants to be

considered so far as it relates to the claims and interest of the applicants. It is further contended that the applicants stand petitioner No.1 in the writ

petition to pursue and follow the case on their behalf, also in view of sensitive assignments in police department and their free movements curtailed

beyond office schedule under the prevailing circumstances. Petitioner No.1, however, betrayed the trust by pressing the writ petition only to the

extent of his interest and claims. That the applicants however came to be informed by petitioner No.1 in the writ petition that the case has been

favourably decided against the respondents and the judgement communicated to the respondents for implementation. The applicants, however,

when learned that petitioner No.1 has been promoted, approached the department for consideration of their case of promotion, but the latter

denied on the ground that the writ has been issued in respect of petitioner No.1 only. It is also submitted that the claim of the applicants having not

been dismissed by any express order or observation made in the decision of the writ petition dated 24091998, the writ petition be restored from

the records for adjudication of the rights of the applicants on the analogy of the order passed in favour of petitioner No.1 . Lastly, it is submitted

that there was no instructions to the advocate for not pressing the writ petition on their behalf, but it has been done on the impression created by

petitioner No.1 upon the counsel appearing before the Court to make such statement and thus prayed that the writ petition consigned to record by

order dated 24091998 be sent for and the matter considered qua the applicants also.

The application stood controverted by the respondents on a blend of grounds both legal and factual. Maintainability of the restoration

application has been assailed on the ground that other efficacious and appropriate remedies available to the applicants have not been availed of for

the last about two years. That the writ petition ha been finally disposed of vide order dated 24091998 when the same stood pressed on behalf of

petitioner No.1 only and as a consequence, not pressed for others including the applicants. That this order having not been challenged either by

way of appeal or review and the present restoration application, having been commenced not under law, deserves to be dismissed that the recitals

in the application also do not constitute good and sufficient cause besides cogent reasons seeking restoration of the writ petition for reconsideration

qua the claims and interests of the applicants. That the writ petition has been decided on merit with respect to petitioner No.1 for whom alone it

was pressed by the counsel and not dismissed in default. qua the applicants and thus rendered their application untenable in law. Lastly it is

submitted that the writ petition has been consigned to records in case of applicants as alleged, but decided and disposed of on merits with respect

to petitioner No.1 for whom alone the counsel pressed it and not for others, and does not give rise to any rights or occasion to the applicants to

seek restoration of the writ petition, and thus prayed for its dismissal.

Heard, considered the rival contention of the parties.

Admitted facts of the case enumerated from record are that the applicants do not dispute the engagement of an advocate to pursue their case of

their behalf, who pressed the writ petition before the Court only on behalf of petitioner No.1 which stood decided on 2409T998. It is also not

denied that the advocate did not appear on their behalf in the said writ petition in the court when he pressed the petition on behalf of the petitioner

No.1 only in the writ. The words ""appear"" and 'nonappearance' must be read and construed so as to mean and include not merely appearance by

the party himself but also appearance through recognized agents and solicitors on the original side, who hold power of attorney. A party may be

found present in the Court room, but he does not take part in the suit, it cannot be said that he has appeared. As regards appearance of a party by

a pleader, different considerations arise. Appearance by a pleader within the meaning of Order 9 CPC does not, like appearance by a party in

person, mean mere presence in Court it means appearance by a pleader ""duly instructed and able to answer all material questions relating to the

suit."" Hence a party cannot be said to appear by a pleader, if the pleader appears at the hearing and states that through he has filed Vakalatnama,

he has not received any instructions from his client with regard to the case, and that he is, therefore, unable to go on with the suit. Similarly, a party

cannot be said to appear by a pleader if the pleader has no instructions other than to apply for an adjournment and on the adjournment being

refused, withdrawn from the suit stating that he has no further instructions. In neither case can it be said that party appeared by a pleader duly

instructed and able to answer all material questions relating to the suit.

In the instant case, advocate appearing on behalf of the applicants in the writ petition besides others was duly instructed and able to answer all

material questions relating to the writ petition in the absence of contrary found in the recitals of the application. The petition having been pressed on

behalf of petitioner No.1 only, as is manifest from the opening words of the order in the writ petition, makes it abundantly clear that the case of

applicants was not pressed and, as a consequence, the applicants appeared through their advocate and the writ petition has been dismissed on

account of their nonappearance. The applicants remained duly represented in the writ petition by their advocate when this petition came to be

pressed on behalf of petitioner No.1 only. This clearly implies that the interest and claims of the petitioners, as a consequence, were not pressed

and writ petition came to be adjudged and the writ on merit stood disposed of qua the interest and claims of the petitioner No.1 to the exclusion of

applicants on whose behalf the writ is not deemed to have been pressed and not dismissed on account of nonappearance so as to attract the

provisions of Order 9 Rule 8 CPC for restoration as pleaded vehemently by the applicants advocate during debate. The applicants contention that

it was on account of petitioner No. 1 gimmick, which created an impression that the counsel appearing in the Court to raise such plea on their

behalf being without any support and being vague and indefinite does not merit consideration.

Taking stock of the facts and circumstances discussed above in its cumulative, irresistible conclusion reached is that the restoration application of

the applicants being devoid of legal force and bereft of any legal substance is hereby dismissed. The application stand disposed of accordingly.