- (1.) B. S. Chauhan, J. This Special Appeal has been filed against the judgment and order of the learned Single Judge dated 14- 8-2007, by which the application of the petitioner-appellant for restoration of the writ petition has been dismissed on the ground that there was no justification for condoning the delay of more than six years.
(2.) THE facts and circumstances of the case are that the petitioner-appellant, while serving as a Soldier in E. M. E. , was given a charge-sheet on 22-11-1991 for remaining absent from duty without leave. After concluding the enquiry, he was awarded the punishment of dismissal from service vide order dated 24- 11-1991. THE petitioner-appellant filed Writ Petition No. 12853 of 1992, which was dismissed in default vide order dated 4-5-2001. An application for restoration with application for condonation of delay was filed in May, 2007. THE said application was rejected by the learned Single Judge vide impugned judgment and order dated 14-8-2007 taking note of the fact that the matter was earlier listed on 12-4- 2001 and adjournment was sought. THE matter was adjourned on the condition that on the next date of listing, no adjournment would be granted on any ground, whatsoever. When the matter came up for hearing on 4-5- 2001, none appeared to press the petition and, therefore, petition was dismissed for want of prosecution. Shri B. N. Singh, learned Counsel appearing for the petitioner- appellant has submitted that the petitioner-appellant had engaged a Counsel, who executed a Vakalatnama in his favour and, therefore, he cannot suffer for inaction on his part. The learned Single Judge ought to have recalled the said order dismissing the writ petition in default, restored the writ petition to its original number and heard the case on merit. Therefore, the appeal deserves to be allowed. On the other hand, Shri C. K. Rai, learned Standing Counsel has opposed the appeal submitting that the application for restoration was filed after more six years of dismissal of the writ petition. The petitioner-appellant was not prosecuting his case with diligence and it was his solemn duty to find out from his Counsel or the Court as what was the status of his case. If he did not consider it proper to enquire about the status of his case or a period of more than six years, no interference is required and the appeal is liable to be dismissed.
(3.) WE have considered the rival submissions made by learned Counsel for the parties, perused the record and examined the judgments relied upon by the Counsel for the parties. In Rafiq & Anr. v. Munshilal & Anr. , AIR 1981 SC 140 and Smt. Lachi & Ors. v. Director of Land Records & Ors. , AIR 1984 SC 41, while dealing with a similar issue held that a litigant cannot suffer for the fault of his Counsel. The Hon'ble Supreme Court in the former case observed as under : "what is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate. . . . . . . . . The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. . . . . . . . We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. ";