HYDERABAD: The party to a case shall not be punished for the laches, if any, on the part of the party’s advocate, the High Court ruled.
The ruling came on a civil miscellaneous appeal filed by the party challenging the order of the district judge, Chittoor dismissing their plea for restoration of the petition which had been dismissed earlier. The district judge dismissed their restoration petition on the ground that their advocate failed to file the affidavit immediately after dismissal of their restoration appeal.
As for the case, the petitioners/appellants are the plaintiffs in the suit before the additional junior civil judge, Chittoor seeking permanent injunction against the respondents in respect of house property. The suit was tried along with the case filed by the respondents. A common judgment was passed whereunder the suit was dismissed and the respondents’ case was decreed.
Aggrieved by the said decrees and judgments, the appellants approached the district judge. The appeals were dismissed for default since the petitioners/appellants did not get ready. Therefore, they filed an application with a plea for setting aside of the dismissal order and restoration of the appeal, saying that on the previous day of adjournment, the counsel for appellants prepared a petition to receive additional written statement and on the date of adjournment the counsel entrusted the appeal to his junior advocate as he was suffering from a throat infection.
But the junior advocate, who was present in the court, did not properly represent the matter and he simply reported ‘not ready’ without mentioning the fact that his senior counsel was suffering from throat infection. As such, the court dismissed the appeal. At that time, the second appellant was present in the court and was called during the hearing. With these submissions the restoration petition was filed.
The respondents/defendants filed a counter affidavit and opposed the petition, saying that the petitioners/appellants intended only to harass them. As there was no proper representation on behalf of the appellants, the lower court dismissed the restoration appeal.
The counsel for the petitioners/appellants told the High Court that his clients had adequate case and fair chances of succeeding in the appeal before lower court. Valuable rights of the petitioners would be jeopardised if the appeal was not restored. In fact, the lower court dismissed the petition on the flimsy ground that the counsel for appellants did not file his affidavit stating that he was suffering from throat pain, he argued. While the counsel for respondents/defendants submitted that the appellants did not evince any interest though the appeal was very old and therefore the lower court rightly dismissed the appeal. “Thus, there are no merits in the restoration petition.”
Justice U Durga Prasad Rao of the High Court opined that there were merits in the civil miscellaneous appeal to allow. So far as non-filing of an affidavit by the counsel for appellants was concerned, that alone could not have been a ground to dismiss the petition. Further, it cannot be said that the restoration petition was filed with inordinate delay. In view of the same, the lower court ought not to have smothered the valuable rights by way of dismissing the restoration petition, he said.
“If, in the wisdom of the counsel for the appellants, the affidavit of the second appellant was sufficient and it was so advised by the counsel, the party may not be in a position to insist on his counsel to file his affidavit. Therefore, the court shall not punish the party for the laches on the part of the counsel, if any. In one of the cases, the apex court held that for the fault of an advocate, a party should not be made to suffer”, he observed.
While allowing the civil miscellaneous appeal, the judge directed the lower court to dispose of the case of the above parties and asked the latter to cooperate with the former for early disposal.