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Judgment
N.K. Patil, J.—The Appellant herein assailing the correctness of the order impugned dated 16.01.2008 passed on I.A.I/2008 in W.P. No. 21518/2005 by the learned Single Judge of this Court has presented the instant appeal.
The Appellant-Petitioner questioning the correctness of the order dated 26.08.2005 passed by the 2nd Respondent vide Annexure-D presented Writ Petition No. 21518/2005. The said writ petition had come up for preliminary hearing in ''B'' group on 18.12.2007 and the matter was taken up for consideration.
There was no representation for the Petitioner. The writ petition filed by the Petitioner was dismissed for non-prosecution. In view of the dismissal of Writ Petition for non-prosecution, the Petitioner filed an application u/s 151 of the CPC for recalling the order dated 18.12.2007 passed in W.P. No. 21518/2005. Two affidavits were filed for recalling the order dated 18.12.2007. The affidavit dated 28.12.2007 was filed by the Appellant herein and the affidavit dated 02.01.2008 was filed by the counsel for the Petitioner-Appellant herein. The application filed by the Petitioner-Appellant had come up for consideration before the learned Single Judge on 16.01.2008. On perusal of the application filed by the Petitioner, the same was rejected holding that there was no legal and valid reason to recall the order. Being aggrieved by the order impugned, as referred above, the Appellant herein felt necessitated to present the instant Writ Appeal.
We have heard the learned Counsel appearing for the Appellant. The order passed on IA-I/2008 on dated 16.01.2008 reads thus:
Order on IA-I/2008:
This application is to recall the default order dated 18.12.2007 dismissing the Writ Petition for non-prosecution. In the affidavits accompanying the application, it is stated that the learned Counsel was held up in C.H.12, while his colleague was held up in C.M.1 is the reason for having not appeared before the court when the case was called.
It is well settled by now that the plea advanced is not one that is available for the learned Counsel in the matter of recalling orders dismissing the petitions for non-prosecution.
I do not find any legal and valid reason to recall the order.
IA-I/08 is accordingly rejected.
This Court has specifically pointed out that the plea advanced is not the one that is available for the counsel in the matter of recalling the order of dismissal of the petition for non-prosecution. The said reasoning given is well considered and interference by this Court is not at all justified.
However, it is significant to note that when the Writ Petition was posted for preliminary hearing in ''B'' group on 13.09.2005 and 21.09.2005 respectively, the matter was adjourned at the request of the counsel appearing for the Petitioner for furnishing synopsis on the ground that it was not in order. In spite of giving sufficient opportunity on two occasions, neither the Petitioner nor the counsel appearing for the Petitioner complied with. Thereafter when the matter was posted on 18.12.2007 neither the counsel nor the Petitioner were present. Hence, on 16.01.2008 when the matter came up before the Court there was no other go for the Court to dismiss the petition for non-prosecution.
Further it is pertinent to note that the statement made in the affidavit dated 02.01.2008 along with the application filed by the counsel does not inspire confidence by this Court and it is well settled law as laid down by the Apex Court and this Court in host of the judgments that the stand advanced is not one that is available for the counsel in the matter of recalling the order. Therefore, we do not find any irregularity or any good ground as such made out to interfere with the order impugned. Therefore, we decline to entertain the relief sought in the instant appeal.
Hence, the Writ Appeal filed by the Appellant is misconceived and the same is dismissed.