Tej Pal Garg, J. - (1.) PRESENT : Sri B.B. Paul, learned Counsel for the petitioner and Sri Rajesh Tandon, learned Counsel for the respondents. The facts of the case are as follows: - - On 8.2.95, the following order was passed on the writ petition itself: - - List as been revised for the third time today and has been taken up in the afternoon session. Sri P.K. Jain, learned Counsel for the respondent is present, but none is present for the petitioner. Hence this petition is dismissed for default. The interim order dated 17.3.1983 confirmed on 26.7.1983 is hereby vacated.
(2.) ON 7.1.1997, the petitioner filed an application praying that the aforesaid order be set aside and petition be restored to its original number. Alongwith the restoration application, another application under Section 5 of Limitation Act was also filed, wherein it was stated that the delay, if any, in filing the restoration application be condoned. Alongwith the application an affidavit of one Pankaj Kumar, said to be the son of the petitioner, was filed. After hearing the learned Counsel for the parties, this Court vide order dated 4.2.97 rejected the application under Section 5 of Limitation Act as also the restoration application on account of its being barred by time. It was observed that the restoration application had been filed 23 months after the dismissal of the writ petition. It was also observed that no affidavit of Sri Jai Kirat Singh, Clerk of the Counsel for the petitioner, was filed in support of the plea for condonation that he had inadvertently omitted the notice of the writ petition in the cause list dated 8.2.95 fixed in the case. It was also observed that no other material had been brought on record in support of the contention that the deponent of the affidavit; namely, Pankaj Kumar, son of the petitioner, came to know from the respondents during the pendency of the case No. 5/96, Diwan Chand v. Hemant Kumar. On 14.2.1997, the petitioner filed the present application praying that the aforesaid order dated 4.2.97 as well as order dated 8.2.95, both passed by this Court be set aside/recalled and the writ petition be restored to its original number. Simultaneously, an application for condonation of delay was also filed alongwith the aforesaid application. Alongwith the application, the affidavit of Jai Kirat Singh, Clerk to Sri B.B. Paul Counsel for the petitioner as well as of Pankaj Kumar, son of the petitioner, was filed. On 21.4.1997, in response to the notices issued to the respondent Nos. 2 and 3, Sri Rajesh Tandon, learned Counsel, entered appearance. Thereafter, time was granted to the respondents for filing counter affidavit. But no such affidavit has been filed till date although it has been stated that the same has been sent to the learned Counsel for the petitioner, who however denies receiving any such document.
(3.) HEARD the learned Counsel for the parties and perused the record of the case. Jai Kirat Singh, Clerk to Sri B.B. Paul, learned Counsel for the petitioner has, in his affidavit, stated that he is the registered Clerk to Sri B.B. Paul; that the learned counsel could not appear in the aforesaid case on account of inadvertent error/mistake on his (Jai Kirat Singh) part, as he inadvertently omitted to notice the present case in the cause list dated 8.2.95; that fact came to his knowledge for the first time in January, 1997 and thereafter, promptly a restoration application was filed on 7.1.97, which was, however, dismissed on 4.2.97. Pankaj Kumar has in his affidavit stated that he came to know of the ex -parte order during the pendency of case No. 5/96, Diwan Chand v. Hemant Kumar, referred to in the order dated 4.2.97 in proceedings under Section 30(2) of Act No. XIII of 1972, which is still pending before the Prescribed Authority, Mawana. A copy of the application has been filed as Annexure -1 to the affidavit (which is dated 3.1.1997) in support of the aforesaid application for condonation. Further that in the aforesaid application (Annexure -1) it was stated by the respondent No. 2 that the petitioner's writ petition has been dismissed on 15.2.1995 after which he contacted his Counsel and came to know that the case was dismissed on 8.2.95, after which the application for restoration was filed. It has been further stated that it was only during the pendency of the aforesaid proceedings before the Prescribed Authority, Mawana that he came to know about the dismissal of the case. On behalf of the petitioner, it has been argued by his learned Counsel Sri B.B. Paul that in view of the affidavits of Jai Kirat Singh and Pankaj Kumar, and document, Annexure -1 to the affidavit of Pankaj Kumar, both the grounds mentioned in the order dated 4.2.97 passed by this Court have been covered, particularly when no counter affidavit has been filed to rebut the same. According to him, a liberal view is required to be taken in such matters when the mistake was on the part of the Clerk of the Counsel or Counsel on account of which the litigant should not be allowed to suffer. Reliance has been placed by him on two decisions of the Supreme Court Collector, Land Acquisition Anantnag v. Katiji : 1987 (13) ALR 306 (SC), and The Punjabi University etc. v. Acharya Swami Ganesh : 972 RD 98.;