Smt. Bohati Devi and Another vs General Public and Another

L.N. Mittal, J.—In this revision petition filed under Article 227 of the Constitution of India, challenge is to order dated 22.08.2013 (Annexure P-1), passed by the trial court, thereby dismissing application (Annexure P-4) filed by the petitioners for restoration of their main petition (Annexure P-3) filed u/s 372 of the Indian Succession Act, for grant of Succession Certificate, which stands dismissed in default, vide order dated 27.07.2012 (Annexure P-2). The petitioners alleged in the restoration application that on 27.07.2012, the petitioner was out of station and counsel for the petitioner had informed the next date of hearing being 08.10.2012, but on 08.10.2012, the petitioner found that the case was not listed and on inquiry, it was discovered that the petition stood dismissed in default on 27.07.2012.

I have heard counsel for the petitioners and perused the case file.

Counsel for the petitioners prayed for restoration of the main petition (Annexure P-3).

I have carefully considered the matter.

Perusal of averments in restoration application (Annexure P-4) reveals that no ground whatsoever has been pleaded for non-appearance of the petitioners'' counsel in the Court on 27.07.2012, when the petition was dismissed in default. On the contrary, perusal of order dated 27.07.2012 (Annexure P-2) reveals that Bar Association, Karnal had boycotted all the Courts in Karnal, without assigning any reason in Resolution dated 26.07.2012 and since none appeared for the parties, the petition was dismissed in default.

The aforesaid conduct of the Advocates, in causing harm to the litigants, has to be strongly disapproved. Once an Advocate has been engaged by a litigant and has accepted the same, it is his professional, legal as well as moral duty, to safeguard the interest of the litigant being represented by him, in accordance with law. Therefore, non-appearance of the Advocate in the case resulting in dismissal thereof in default is grave professional misconduct on the part of the Advocate. Such non-appearance due to alleged boycott of Court or strike is further highly condemnable. Unnecessary litigation is generated by such conduct of the Advocates, as has happened in this case. Needless to say that the litigant has to suffer and has to pay through his nose to pursue such avoidable and unnecessary litigation.

Having said as aforesaid, coming to the facts of the instant case, although no ground, much less sufficient ground, has been pleaded in the restoration application (Annexure P-4) for restoration of the Succession Certificate petition (Annexure P-3), yet in view of peculiar facts and circumstances of the case, petition (Annexure P-3) deserves to be restored because the said petition pertains to Succession Certificate regarding Estate of Phool Singh alias Phulla Ram (since deceased). If the Succession Certificate petition is not restored, the amount of the deceased Phool Singh alias Phulla Ram lying with Co-operative Bank shall not be realized by the rightful claimants and the Co-operative Bank would get unduly enriched in this fashion. Moreover, respondent no. 2, in the instant case, also endorsed `no-objection'' on the restoration application. It would mean that there is no contest from the side of respondent no. 2.

In the aforesaid circumstances, the Succession Certificate petition deserves to be restored, on payment of costs.

I intend to dispose of the instant revision petition without issuing notice to respondent no. 2 because respondent no. 2 had made endorsement of `no-objection'' on the restoration application. Resultantly, the instant revision petition is allowed. Impugned order (Annexure P-1) passed by the trial court is set aside. Restoration application (Annexure P-4) filed by the petitioners is allowed and Succession Certificate petition (Annexure P-3) is restored to the files of the trial court, subject to deposit of Rs. 7,500/- as costs precedent with District Legal Services Authority, Karnal.