SHETHNA, J. - (1.) THE petitioners have challenged in this petition the impugned order dated 15. 9. 1981 (Annex. 11) passed by the Collector, Sirohi making reference to the Board of Revenue and the order passed by the Board of Revenue on March 14, 1990 (Annex. 16) accepting the same.
(2.) HOWEVER, learned counsel Shri Rathore has restricted his challenge to the order at Annex. 16 dated 14. 3. 1990 passed by the Board of Revenue accepting the reference made by the Collector. Learned counsel Shri Rathore vehemently submitted that the petitioners are most unfortunate victims of their advocate Shri Gokul Prasad Sharma of Ajmer (who is presently a member of Board of Revenue ). He submitted that the notice of the proceedings before the learned Board of Revenue were duly served upon the petitioners and immediately thereafter, they engaged Mr. Gokul Prasad Sharma, Advocate, Ajmer to file power on their behalf and also settled and paid his remuneration, but to their misfortune Mr. Gokul Prasad Sharma neither filed his power nor appeared on their behalf before the Board of Revenue and continued to write postcards to the petitioners demanding his fees and expenses. He further submitted that though Mr. Gokul Prasad Sharma was aware of the final order passed by the Board of Revenue against the petitioners on 14. 3. 1990 (Annex. 16 ). He deliberately did not inform about the same to the petitioners and height of it Mr. Gokul Prasad Sharma by his postcard dated 20. 3. 1990 demanded his fees and expenses (Annex. 17) in the form of notice and the date given thereunder for making payment was April 5, 1990. He submitted that earlier also Mr. Gokul Prasad Sharma wrote a letter dated May 8, 1988 (Annex. 18) to the petitioner No. 1 demanding fees and expenses without any reference to the fees already received by him earlier. He, therefore, submitted that under the circumstances petitioners were not able to effectively represent their case before the Board of Revenue and ex-parte order was passed against them by the Board of Revenue and the reference made by the Collector was accepted on 14. 3. 1990 (Annex. 16 ). He, therefore, submitted that the impugned order is required to be quashed and set aside and one opportunity be given to the petitioners to represent their case before the Board of Revenue by remanding the matter to the Board of Revenue. In support of his submission Mr. K. S. Rathore relied upon the judgment of Hon'ble Supreme Court in case of Rafiq and another vs. Munshilal and another (1 ). The above averments made on oath in the writ petition by the petitioners with the documentary evidence in the form of post card addressed by Mr. Gokul Prasad Sharma have remained uncontroverted as no reply affidavit is filed in this petition by the respondents though they are duly served. Today, no one has remain present when the matter was called out finally. There is a lot of substance in the submission made by Mr. Rathore for the petitioner that for no fault of the petitioners they are made to suffer. It may be stated that this petition was admitted way back in 1991 and there is also stay in favour of the petitioners on stay petition since 1991, which was confirmed after hearing Mr. S. K. Vyas, learned counsel for respondents No. 1, 2 and 3 on 13. 1. 1992 by the Division Bench of this Court. In Rafiq's case (supra) the appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recalling the order of dismissal was rejected by the High Court. The Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. The present case is squarely covered by the aforesaid judgment. In view of the above discussion, this writ petition is allowed. The impugned order at Annex. 16 dated 14. 3. 1990 passed by the Board of Revenue is hereby quashed and set aside and the matter is remanded to the Board of Revenue with a direction that the reference No. 6/82/lr/sirohi be decided afresh after issuing fresh notice to the parties including the present petitioners. After hearing them either in person or through their counsel the Board of Revenue shall decide the matter afresh in accordance with law without being swayed away from the finding recorded earlier by the Board of Revenue on 14. 3. 1990.
(3.) IN view of the serious professional mis-conduct alleged to have been committed by Shri Gokul Prasad Sharma, the then Advocate of the petitioners, who is presently a member of Board of Revenue, it is ordered that reference shall not be heard by Shri Gokul Prasad Sharma and it shall be heard by any other member of the Board of Revenue. Before parting, I must state that it is a very serious matter where the advocate committed such a serious professional misconduct for which the matter would have been referred to the Bar Council, but the fact that Mr. Gokul Prasad Sharma, who is now appointed as a member of the Board of Revenue, therefore, it is desirable that this Judgment be placed before the Hon'ble Chief Justice for taking appropriate action in the matter. Accordingly, office is directed to place this Judgment before the Hon'ble Chief Justice for taking appropriate action in the matter. .;