Rajendra Singh vs State of Rajasthan and Others

Rajesh Balia, J.

1.Application for dispensing with preparation of paper-book is allowed.

The writ petition No. 1011/1999 filed by the petitioner was dismissed on 14.5.1999 for want of prosecution because the learned Counsel for the petitioner was absent on 14.5.1999 when the matter was called out. The restoration application too has been dismissed vide order dated 24.3.2000 by holding that the explanation furnished by the application in respect of the previous order-sheet is not in consonance with the previous order-sheets and the writ petition was also dismissed on merit. Hence, this appeal.

We have perused the order as well as considered the explanation furnished by the learned Counsel for the petitioner.

It is true that the facts given about the proceedings on 19.4.1999 is not in consonance with the proceedings recorded. However, very precisely it was the case of the appellant that the learned Counsel submitted that he appeared on that date and he submitted that some similar writ petitions are aleo pending then the Court directed the Counsel to give the number of the pending writ petitions and the matter had been adjourned for two weeks. But instead in the order-sheet it has been inadvertently recorded that ''None present. Put up after three weeks. Therefore, it cannot be said that the petitioner has said something deliberately contrary to record. He has merely tried to explain reasons for his absence recorded in the order sheet dated 19.4.1999. The learned Single Judge did not notice that the learned Counsel has not said that he was present on 19.4.1999 in the Court and it has been shown recorded in the Court order- sheet. His prescise case was that he was present on 19.4.1999 but the order-sheet records him to be not present inadvertently.

Where an application is made to point out some mistakes in record of proceedings for the purpose of correcting it, such an application cannot be recorded merely because the applicant pleads his case about inadvertent mistake in recording the proceeding by pointing out that facts mentioned in the application are contrary to record. This clearly shows that an applicant seeking relief by pointing out a seemingly incorrect record of proceedings has been understood as an application to seek some relief by making wrong statements.

Moreover, we find that the writ has not been dismissed on merits as appears to be taken by the learned Single Judge while considering the application for restoration which has substantively effected the decision is not sustainable. The explanation furnished by the learned Counsel for his absence on 19.4.1999 has not been found to be incorrect. In these circumstances we are of the opinion that the petitioner deserves a chance to get his petition decided on merit.

After hearing both the learned Counsel for the parties we are satisfied that the petitioner had made a case for restoration of the writ petition which was dismissed for want of prosecution.

As a result this appeal is allowed. Order dated 24.3.2000 is set aside. The Restoration Application No. 972/99 (DRJ) is also allowed and the writ petition No. 1011/9 is restored to its original number to be listed before appropriate bend for hearing.