CLASSIC AIR CONDITIONERS PVT. LTD.-/ vs PAWAN KUMAR JAIN

BY this order we shall dispose of application dated 5.1.2001, filed by the appellant/applicant. It is stated in the application that the above mentioned appeal was filed by the appellant against respondent Nos. 1 and 2 on the ground that the payment was received by respondent No. 2 from respondent No. 1 and that the appellant was not liable to make any payment to respondent No. 1. During the proceedings before this Commission, respondent No. 2 admitted its liability and undertook to make payment to respondent No. 1 by 5.1.2001. It is also stated that respondent No. 2 had made part payment of Rs. 15,000/- on last date of hearing before this Commission and that the case was listed for 5.1.2001 for respondent Nos. 1 and 2 to report payment of full and final payment. That on 5.1.2001, Counsel for the appellant was on the way to this Commission but got delayed due to starting problems of his car. BY the time, Counsel for the appellant reached this Commission, it was learnt that the appeal had already been dismissed due to non-appearance on behalf of the appellant. It is stated that absence of Counsel for the appellant/applicant was due to bonafide reasons. It is, therefore, prayed that this application be allowed and the appeal which was dismissed in default vide order dated 5.1.2001 be restored to its original number.

THIS application has been contested by Dr. Pawan Kumar Jain, respondent No. 1/non-applicant by filing detailed reply. It is stated that the application for the restoration of the appeal has been filed with malafide intention to delay the payment of money due to him. It is also stated that the appellant/applicant had already delayed the implementation of the judgment of the learned District Forum dated 23.6.1999 for more than two years. It is also stated that the appellant/applicant is hand in glove with respondent No. 2 to delay the payment of money. That respondent No. 2 has not received the full money till date in spite of repeated assurances before this Commission. It is prayed that the application filed by the appellant/applicant be dismissed. No reply was filed by respondent No. 2.

We have heard the arguments advanced by the learned Counsel for the appellant/applicant and respondent No. 1/non-applicant Dr. P.K. Jain and Mr. Neeraj Goel, Service Engineer of respondent No. 2/non-applicant.

IT is pertinent to state that in partial satisfaction of the claim of respondent No. 1/ non-applicant Dr. P.K. Jain, Mr. Neeraj Goel, Service Engineer of respondent No. 2/non-applicant had handed over account payees banker''s cheque dated 30.10.2000 for Rs. 15,000/- drawn in favour of Dr. P.K. Jain, respondent No. 1/non-applicant. Order dated 31.10.2000 further shows that Mr. Neeraj Goel, Service Engineer of respondent No. 2/non-applicant undertook to liquidate the entire liability within two months. A receipt dated 20.11.2001 has also been placed on record which shows that a sum of Rs. 12,000/- had been received by Dr. P.K. Jain, respondent No. 1/non-applicant from respondent No. 2/non-applicant Air Command, Air Technics Ltd. Order dated 31.10.2000 shows that respondent No. 2 had undertaken to liquidate the entire liability within a period of two months. In the application filed on behalf of the appellant/applicant, it is stated that Mr. Arun Arora, learned Counsel for the appellant/applicant was coming to this Commission but due to starting problem in his car he reached the Commission late and had come to know that the appeal had already been dismissed in default. It is also stated in the application that the learned Counsel for the appellant/applicant had mentioned this matter after lunch break. This application dated 5.1.2001 was filed before this Commission on 6.1.2001. From the aforesaid facts, it is apparent that non-appearance of the learned Counsel for the appellant/applicant before this Commission on 5.1.2001 was not intentional but due to circumstances explained in his application to the effect that when he was coming to this Commission, there was starting problem in his car so he reached late. Law is settled on the point that when a good cause is shown for non-appearance of Counsel on a date of hearing, the case ought to be restored otherwise its refusal to do so would amount to patent miscarriage of justice. Law is also settled on the point that client should not suffer due to negligence on the part of his Counsel. Doors of justice should not be locked to appellant and, therefore, for the ends of justice, the appellant should have decision of the appeal, filed by him, on merits.

IN view of the aforesaid discussion, we are of the view that the application for the restoration of the appeal dismissed in default vide order dated 5.1.2001 deserves to be allowed and the appeal (Appeal No. A-1130/1999) dismissed in default vide order dated 5.1.2001 deserves to be restored to its original number. Accordingly, the application dated 5.1.2001, filed by the appellant/applicant is allowed and the appeal (Appeal No. A-1130/1999) dismissed in default vide order dated 5.1.2001 stands restored to its original number. The application dated 5.1.2001, filed by the appellant/applicant, stands disposed of in above terms. Application disposed of.