- (1.) D. S. Sinha ,o. P. Jain, JJ. Heard Shri Ram Om Vikram Singh Chauhan, who claims himself to be the brief holder of Shri Vishnu Gupta and who is stated to have filed Vakalatnama in sup port of the application No. 28537 of 1996 moved on behalf of the heirs of the petitioner No. 1, heirs of the petitioner No. 37 and the petitioners No. 2,3,4,5, 8, 23,24,25,38 and 50 for recalling the order dated 13th December, 1988 whereby the Court dismissed the petition for non-prosecution.
(2.) THE writ petition questioning the land acquisition proceedings at the behest of U. P. Avas Evam Vikash Parishad, was filed by 63 petitioners through their Coun sel Shri S. K. Singh in October 1983 and, on 13th December, 1988, it was dismissed for non-prosecution. After slumbering for a period of about eight years, on 6th May, 1996, the legal representatives of two petitioners who are said to have died in the meantime and ten petitioners moved an application for recalling the order dated 13th December, 1988 dismissing the writ petition for non-prosecution and restor ing the same to its original number for decision on merits. Significantly, other petitioners have not come up for restoring the petition. It appears that they have ac quiesced to the dismissal of the writ peti tion for non-prosecution. The restoration application which is highly belated is not accompanied by any application for condonation of delay nor is there any prayer in that regard in the ap plication, though a feeble attempt has been made to justify the delay in moving the restoration application in the affidavit of Shri Suraj Prasad, the petitioner No. 23, filed in support of the restoration applica tion. Upon hearing the learned Coun sel, at length and in detail and carefully scrutinizing the averments made in the affidavit filed in support of the restoration application, the Court is of the considered view that this is not a fit case where the prayer for recalling the order dated 13th December, 1988 dismissing the writ peti tion for non-prosecution should be ac cepted. Firstly, because the application is highly belated, secondly because the other co-petitioners, numbering about 50 petitioners, have accepted the order of dis missal for want of prosecution and thirdly, the cause shown for negligence in not ap proaching the Court for restoration early does not inspire credence. Other wise also, cause lacks sufficiency justifying the res toration application.
(3.) THE main thrust of the arguments advanced on behalf of the applicants is that it is the mistake of the Counsel and the applicants for restoration cannot be penalised and denied the prayer on that ground. THE arguments of the learned Counsel ignore the legal position clarified by fee Honble Supreme Court in its judg ment in the Salil Dutta v. T. M. and M. C. Private Ltd. , JT 1993 (4) 528. Hon'ble Supreme Court points out that:- "the advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and state ments of the principal i. e the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismiss al order or an ex-pane decree notwithstanding the negligence and/or misdemeanour of the ad vocate where it finds that the client was an in nocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely dif ficult. " It is also pertinent to notice that the restoration application has not been moved by the Counsel who had filed the writ petition and whose default in ap pearance led to the dismissal of the peti tion for non- prosecution. In the totality of the circumstances, the Court feels that by allowing the prayer of the applicants for restoration of the case after about eight years it will suffer the attempt of the applicants to abuse the process of the Court. 7, In the result, the prayer for recall ing the order dated 13th December, 1988 dismissing the petition for non-prosecu tion is denied and the application No. 28537 of 1996 made in that regard is rejected. Restoration rejected. .;