Ali Mohd.Mir vs Union of India

V.K. Gupta, J.—SWP No. 718 of 1994 was dismissed in default and or non prosecution on 4.8.1994. This is an application moved by the

petitioner seeking restoration of the aforesaid dismissed writ petition to its original number. Objections have been filed by the respondents through

Shri A. Kapoor.

The only ground urged in support of the application is that the petitioner thought that writ petition was tied up in the Bench of Hon'ble Khan J

and because on 4 August, 1994 his Lordship was holding the court at Srinagar, the petitioner got a bonafide impression that the matter would not

be listed before any other Bench, it being tied up to the particular Bench. The petitioner submits that the matter, however, came to be listed on the

Board of other Bench, Gupta, J and because the petitioner could not appear in the court because of the aforesaid impression that he carried, the

writ petition was dismissed in default of appearance. The second ground urged in support of the application is that there is a long standing practice

in this court that the cause are not dismissed in default of appearance on the first occasion of nonappearance and that because of long standing

practice, this case ought to not have been dismissed.

Mr. Kapoor, learned AAG has controverted both the submissions of the petitioner. According to him, there was no basis whatsoever for the

petitioner to be under any impression that the matter was tied up to the particular Bench because the matter in fact was not tied up to any particular

Bench. According to Mr. Kapoor, the petitioner ought to have known that only part heard matters are assigned to a particular Bench or

considered tied up. The present case was never part heard before the particular Bench nor was it assigned and therefore, the petitioner was not

right in being under the impression of its being tied up to a particular Bench. Mr. Kapoor's second submission is that there is neither any practice in

this court nor any rule which lays down that a matter should not be dismissed in default of appearance on the first day of absence or that there is

any requirement either originating from the practice or from the rule which enjoins upon the court to wait for an absent party for future date.

After hearing the learned counsel appearing for the parties at great length I find myself in complete agreement with the submissions of Mr.

Kapoor. He is right on both the counts. The matter was not and could not be deemed to be tied up with any particular Bench because neither it

was ordered to be so by that Bench, nor was it part heard nor was it assigned to any particular Bench by the Chief Justice. If the petitioner

unnecessarily and without any logic carried on wrong impression, he himself was to be blamed for this and no one else. That cannot be a ground

for restoration. Similarly the petitioner is wholly unjustified and totally incorrect in canvassing the proposition that there is some practice in this court

that the petitions should not be dismissed in default of appearance on the first day of absence. If a party is absent when the case is called and when

it is properly listed and the parties appear to have the knowledge of the listing of the case, it is entirely upto the discretion of the court, depending

upon the merits of the case and the situation prevailing as to what orders are to be passed on that particular occasion. In fact, it goes without saying

that the dismissal in default of appearance of parties is a recognised and well established norm in civil proceedings, which finds recognition and

acknowledgement in the duly codified Code of Civil Procedure. Even though all the provisions of CPC are not expressly applicable to proceedings

under Article 226 of the Constitution, yet principles emanating therefrom are reasonably and logically more often than not made applicable, except

of course in those situations, where their spirit or applicability may be repugnant to or inconsistent with the purpose for which the petition is filed. If,

therefore, in a given situation, if the court finds that a party is absent and the court is unable to comprehend a situation, where it could justify the

absence of the party on any tangible ground, perhaps dismissing the petition in default of appearance on that very day of absence itself would not

only be a logical corollary to the culmination of the proceedings, but would be a desired and permissible course of action to be adopted. It,

therefore, does not lie in the mouth of an absent litigant to come and canvass in the court that he should be afforded more opportunities of

remaining absent and only after a fixed number of absences, should the court dismiss the petition. On both the counts, therefore, I find that the

petitioner has not been able to make out any case warranting the restoration of petition.

5.When I went through the application and heard Mr. Jan, I enquired from him about the nature of controversy in the case and was informed that

the petitioner had filed the writ petition relating to some dispute about his date of birth. Mr. Jan also informed me that the dispute revolves around

some interpretation and that the ends of justice would be better served, if an opportunity is allowed to the petitioner to canvass his points taken in

the writ petition in the light of the merits, so that he has the satisfaction of not suffering because of default of appearance of the petitioner and that a

finding is given by the court on the merits of the controversy itself. Despite the view that I have taken on the merits of controversy involved in this

restoration application, I think that the interests of justice may be better served, if the petition is heard on merits and it is only for this reason and for

no other one that I may be inclined to restore the petition to its original number. The restoration of course is subject to payment of Rs. five

thousand as costs to be paid by the petitioner within four weeks from today. On the costs being paid, the dismissed writ petition shall be deemed

to have been restored to its original number and this application allowed. If the costs are not paid, this application shall be deemed to have been

dismissed.

On the needful being done, the Registry shall list the restored petition for orders in the week commencing 12th Dec. 1994.