MAHIPAL SINGH vs Tarsem Singh

IT is an application for restoration of the appeal, dismissed in default, to its original number by recalling order dated February 13, 2001, passed by this Commission, the relevant part of which is reproduced hereunder : "Present : For the Appellant : None. For the Respondents : Mr. Rajinder Sharma, Advocate. xxx xxx None is present for the appellant. The appeal is, therefore, dismissed in default."

IT has been averred in the application for restoration that the date in the above-noted case was fixed as 5.10.2000. The applicant, as averred in the application, sent a telegram on 4.10.2000 requesting the Hon''ble Commission to adjourn the case as the applicant-appellant was not able to attend the Court on 5.10.2000. IT is then stated that, thereafter, the applicant-appellant kept waiting for the next date in the appeal but no intimation was received by him from the Commission. Surprisingly, on 4.9.2001 the applicant-appellant received a show cause notice dated 23.8.2001 under Section 27 of the Consumer Protection Act to appear and file reply as to why proceedings be not taken against him for issuance of warrants of arrest as the appeal filed by the applicant had been dismissed in default vide order dated 13.2.2001 (restoration of which has been called for). IT is further stated in the application that non-appearance of the applicant-appellant on 13.2.2001 was not intentional. The applicant-appellant was under the bona fide impression that whenever the next date will be fixed, he will receive an intimation from the Hon''ble Commission. IT is on this basis that a prayer has been made that this application may be allowed and the order dated 13.2.2001 be recalled and the main appeal be restored to its original number. Notice on the application was issued to the respondents and Mr. Rajinder Sharma, Advocate has appeared and has filed reply on behalf of the respondents.

The respondents have taken some preliminary objection to the misc. application. In Preliminary Objection No. 1, it has been stated that certified copy of order dated 13.2.2001, as per the office record, was sent to the applicant on 12.3.2001 by Registered Post. The same might have been received by the applicant at the most by 20.3.2001. However, the present application has been filed on 10.9.2001. i.e. after seven months from the date of order and about six months from the date of receipt of the certified copy of the order. Thus, it is prayed that this application needs be dismissed on the short ground of having been filed after much delay.

IN Preliminary Objection No. 2, it has been stated that it is apparent from the record that after getting the stay orders from the Court on 18.3.1999 at the time of preliminary hearing, neither the Counsel, nor the appellant had put in appearance on any of the dates fixed for hearing i.e. 16.12.1999, 14.2.2000, 29.7.2000, 5.10.2000, 13.2.2001. It is further mentioned that it is discernible from record that notices were sent by the Registry to the legal Counsel, as well as to the party, and these were duly received by the addressees and, despite this, they never put any effort to appear before the Court. Thus, the conduct of the applicant clearly shows that he wanted to harass the respondents who had put in appearance through Counsel on each and every date and the applicant, thus, had no respect for the Court. Non-appearance of the applicant, on the dates fixed was intentional and not bona fide as per the reply filed by the respondents. It is still further pleaded by the respondents in their reply that the applicant had concealed a material fact from this Commission that in addition to the outside Counsel, a local Counsel, namely Mr. Naveen Mahajan, Advocate, was also engaged in whose favour Vakalatnama is on record. Ultimately, it is prayed in the reply that the application for restoration of the appeal be dismissed with heavy costs.

ACCORDING to applicant''s own showing, this appeal was fixed for hearing on 5.10.2000 and a request was made by the applicant for adjournment and, thus, on that day the appeal was adjourned to 13.2.2001 for arguments. On 13.2.2001, when none is was present for the appellant and Mr. Rajinder Sharma, Advocate was present for the respondents, the appeal was dismissed in default. It was obligatory on the part of the applicant-appellant to know about the further date in the appeal fixed by the Commission and particularly so when it was fixed on the request of the applicant, made through a telegram. Neither applicant, nor his Counsel, bothered to take care of the case. They were duty-bound to enquire about the next date from the Commission. It was not obligatory on the part of the Commission to inform the next date. We also find force in the contention of the respondents, raised in their reply to the M.A. wherein it is stated that the applicant throughout the proceedings of the case remained negligent. It is found on record that neither the appellant, nor his Counsel appeared in the appeal on several dates. Once an intimation was served to the Counsel for the appellant or to the appellant to appear and both the appellant and his Counsel stood served, still nobody bothered to appear. In the circumstances, aforementioned, we neither find it just, nor proper, to allow the prayer made by the applicant in the Misc. Application for restoration of the appeal. The Misc. Application is, accordingly, dismissed being without any merit with costs which are quantified as Rs. 1,000/-. Application dismissed with costs.