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Judgment
D.S. Sinha and O.P. Jain, JJ.—Heard Shri Ram Om Vikram Singh Chauhan, who claims himself to be the brief holder of Shri Vishnu Gupta and who is stated to have filed Vakalatnama in support of the application No. 28537 of 1996 moved on behalf of the heirs of the petitioner No. 1, heirs of the petitioner No. 37 and the petitioners No. 2,3,4,5, 8, 23,24,25,38 and 50 for recalling the order dated 13th December, 1988 whereby the Court dismissed the petition for nonprosecution.
The writ petition questioning the land acquisition proceedings at the behest of U.P. Avas Evam Vikash Parishad, was filed by 63 petitioners through their Counsel Shri S.K. Singh in October 1983 and, on 13th December, 1988, it was dismissed for nonprosecution. After slumbering for a period of about eight years, on 6th May, 1996, the legal representatives of two petitioners who are said to have died in the meantime and ten petitioners moved an application for recalling the order dated 13th December, 1988 dismissing the writ petition for nonprosecution and restoring the same to its original number for decision on merits. Significantly, other petitioners have not come up for restoring the petition. It appears that they have acquiesced to the dismissal of the writ petition for nonprosecution.
The restoration application which is highly belated is not accompanied by any application for condonation of delay nor is there any prayer in that regard in the application, though a feeble attempt has been made to justify the delay in moving
the restoration application in the affidavit of Shri Suraj Prasad, the petitioner No. 23, filed in support of the restoration application.
Upon hearing the learned Counsel, at length and in detail and carefully scrutinizing the averments made in the affidavit filed in support of the restoration application, the Court is of the considered view that this is not a fit case where the prayer for recalling the order dated 13th December, 1988 dismissing the writ petition for nonprosecution should be accepted. Firstly, because the application is highly belated, secondly because the other copetitioners, numbering about 50 petitioners, have accepted the order of dismissal for want of prosecution and thirdly, the cause shown for negligence in not approaching the Court for restoration early does not inspire credence. Other wise also, cause lacks sufficiency justifying the restoration application.
The main thrust of the arguments advanced on behalf of the applicants is that it is the mistake of the Counsel and the applicants for restoration cannot be penalised and denied the prayer on that ground. The arguments of the learned Counsel ignore the legal position clarified by fee Honble Supreme Court in its judgment in the Salil Dutta v. T.M. and M.C. Private Ltd., JT 1993(4) 528. Hon''ble Supreme Court points out that:
"The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an expane decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."
It is also pertinent to notice that the restoration application has not been moved by the Counsel who had filed the writ petition and whose default in appearance led to the dismissal of the petition for nonprosecution.
In the totality of the circumstances, the Court feels that by allowing the prayer of the applicants for restoration of the case after about eight years it will suffer the attempt of the applicants to abuse the process of the Court.
7, In the result, the prayer for recalling the order dated 13th December, 1988 dismissing the petition for nonprosecution is denied and the application No. 28537 of 1996 made in that regard is rejected. Restoration rejected.