B.K. Roy, D.R. Chaudhary, JJ. - (1.) THROUGH this Civil Misc. Recalling Application No. 39698 of 1999 the applicant -writ petitioner prays to recall our order dated 26.5.1999 and to hear the writ petition on its merit after giving an opportunity to the counsel for the petitioner for ends of justice. The record discloses that on 26.5.1999 the Applicant's Civil Misc. Writ Petition No. 12811 of 1991 was dismissed as no one had turned up on his behalf to press the said writ petition.
(2.) THE application states that upon the facts, reasons and grounds stated in the accompanying affidavit it would be expedient in the interest of justice to recall our order aforementioned. The affidavit has been sworn by the applicant himself. It contains 15 paragraphs, the relevant ones reads thus: 1. That, the deponent is the sole petitioner in the aforesaid writ petition, and as such he is fully conversant with the facts of the case deposed to below. x x x x x 9. That, it is relevant to state here that the petitioner received a letter dated 29.6.1999 issued from the office of Chief Medical Officer, Sonbhadra (respondent No. 2), and also the copy was forwarded to the Station House Officer, Police Station: Robertsganj, District Sonbhadra mentioning therein that the abovenoted writ petition has been dismissed on 26.5.1999 by Hon'ble High Court, accordingly, the Area Police was directed to close the shop of petitioner. A photostat copy of the order dated 29.6.1999 passed by respondent No. 2, is annexed herewith and marked as Annexure No. 1 to this affidavit. 10. That, the petitioner received a letter dated 29.6.1999 of respondent No. 2 and on 5.7.1999 came to Allahabad and contacted and engaged Shri Radha Mohan Pandey, Advocate to ascertain the correct facts and also to enquire the above noted writ petition which was shown as dismissed on 26.5.1999 as informed by the respondent No. 2 vide his letter dated 29.6.1999. 11. That on 6.7.1999 the petitioner came to know regarding the order dated 26.5.1999 passed by Their Lordships Hon'ble Mr. Justice B.K. Roy and Hon'ble Mr. Justice D.R. Chaudhary JJ. which runs as follows: ORDER ON THE ORDER -SHEET Even though Sri P.K. Bisaria Learned Standing Counsel is present on behalf of respondents, no one turns up on behalf of the petitioner to press this writ petition. This writ petition is, accordingly, dismissed. The office is directed to hand -over the copy of this order within two days to Shri P.K. Bisaria Learned Standing Counsel for its intimation to the authority concerned. Dated 26.5.1999 Sd. Binod Kumar RoySd. D.R. Chaudhary 12. That, it is relevant to state here that the abovenoted writ petition of petitioner was filed by Mr. P.M.N. Singh, Advocate who was counsel of petitioner, and the above noted writ petition was listed on 26.5.1999 due to inadvertent mistake. Mr. Singh did not appear before the Hon'ble Court, and the order was passed in his absence but due to the fault of counsel of petitioner, the petitioner is facing hardship, hence it is desirable in the interest of justice that the poor petitioner be given opportunity of hearing for ends of justice, otherwise, the poor petitioner would suffer grave and irreparable loss. 13. That, the petitioner came to know on 3rd July, 1999 by order dated 29.6.1999 of respondent No. 2 and rushed to Hon'ble High Court and on 6.7.1999 came to know the correct facts regarding the order of this Hon'ble Court on 26 5.1999 and is filing the instant restoration application has committed no fault, carelessness or negligence in filing the restoration application, hence the same be treated well within time, and the order dated 26.5.1999 be recalled and the writ petition be heard on merit after giving the opportunity of hearing to the petitioner. 14. That, it is relevant to state here that the petitioner engaged Shri P.M.N. Singh to conduct his case, but by mistake known to him did not appear and on 26.5.1999 the ex -parte order was passed for no fault of petitioner, hence it is desirable in the interest of justice that this Hon'ble Court may graciously be pleased to allow the application and recalled the order dated 26.5.1999 and also the order dated 29.6.1991 be restored, and the writ petition noted above be heard on merit after given full opportunity to the counsel of petitioner, otherwise the applicant petitioner would suffer grave and irreparable loss. I, the deponent named above do hereby declare and verify that the contents of paragraph Nos. 1 to 6, 10, 12, 13 and 14 of the accompanying affidavit; are true to my personal knowledge; and those of the contents of paragraph Nos. 9 of the accompanying affidavit; are. based on perusal of records; and those of the contents of paragraph Nos. ... of the accompanying affidavit; are based on information; and those of the contents of paragraph Nos. 7, 11 of the accompanying affidavit; are based on legal advice; which all I believe to be true that no part to it is false and nothing material which have been concealed in it. So help me god. (Deponent).
(3.) IT is not the case of the applicant -writ petitioner that the statements made in paragraph 12 and 14 are based on the information derived from his earlier counsel Sri P.M.N. Singh. On the contrary he claims those statements as true to his personal knowledge. If we proceed to accept the correctness of his statements set -forth above then we will presume that the petitioner was very much present in Court on 26th May, 1999 because he is claiming those statements true to his personal knowledge. Mr. P.M.N. Singh alone is the best person to state as to why he had not appeared even though the list showed his name.;