KOCHHAR J. - (1.) THE facts giving rise to this application under Article 226 of the Constitution of India, filed by Kumari Renu Chauhan, for restoration of her writ petition dismissed in default on 6. 05. 1992, are as under: -
(2.) ON 16. 11. 1989, the applicant filed a writ petition in this Court, through Shri B. L. Samdariya and Mrs. Maya Bansal, Advocates, stating that she had passed her B. A. Examination in Pass (III) Division, securing 44. 66 per cent marks in the year 1989, and that she applied for being admitted to First Year of LL. B. Course in Government College, Ajmer (respondent No. 2), which is being run by the Government College, Ajmer Society, Ajmer (respondent No. 1), and that according to the Prospectus issued by the said College, a candidate seeking admission to LL. B. Course, must have obtained at least 45 per cent marks, as has been provided in Ordinance-252 of the Ordinances, issued by the University of Ajmer (respondent No. 3 ). She pleaded that the Bar Council of India, which regulates the studies of law had abolished the minimum requirement of 45 per cent Marks for seeking admission in the LL. B. Course, and this fact had appeared in a news-item in 'dainik-Navjyoti' dated 18. 10. 1989 and was brought to the notice of the Principal of respondent No. 2 College, but, still her application was not considered on the ground that she was not eligible in accordance with Ordinance-252 of the Ajmer University Ordinances. She thus prayed that a direction be issued to the respondents to admit her to LL. B. Course in respondent No. 2 College. Along with the writ petition, an application for interim relief was also filed, in which, it was prayed that during the pendency of the writ petition, the petitioner might be directed to be admitted provisionally to LL. B. Course of the College. The matter came up before S. M. Jain, J. on 21. 11. 1989, when Shri B. L. Samdariya, Advocate, appeared for the applicant and when it was directed that notices be issued to the respondents to show cause as to why the writ petition should not be admitted and disposed of and further that notice of the stay application should also be issued to the respondents, and in the meanwhile, provisional admission would be given to the petitioner to First Year of the LL. B. Course. The rule was made returnable within four weeks. ON 7. 12. 1989, the matter was examined by the Office, and it was reported that necessary copies had not been filed for issuing notices to the Government Advocate, and as such, vide order dated 11. 12. 1989, S. N. Bhargava, J. directed that the necessary copies should be filed by the petitioner. After the service of the notices had been effected on the respondents, the matter came up before S. S. Byas, J. on 13. 09. 1990, when Smt. Maya Bansal, Advocate for the petitioner-applicant, appeared before the Court and sought adjournment for addressing arguments for admission. ON 26. 03. 1990, the matter was put up for admission before Farooq Hasan, J. , when Shri Akhil Simlot, Advocate, appeared on behalf of the counsel for the petitioner, and at his request, the matter was adjourned for two weeks, and thereafter, the matter was put up before D. L. Mehta, J. on 11. 04. 1990, when none appeared on behalf of the petitioner, and there being a strike by the Advocates in the Court, the matter was directed to be put up after four weeks. Thereafter, the matter came up before V. S. Dave, J. on 14. 05. 1990, when Shri B. L. Samdariya, Advocate for the petitioner appeared before the Court, and at his request, the matter was adjourned to 16. 05. 1990. ON 16. 05. 1990, the matter was put up before D. L. Mehta, J. , and even on that date, a request for adjournment was made, and the matter was adjourned for two months. The case was put up before V. S. Dave, J. on 18. 07. 1990, on which date also, a request for adjournment was made, and the matter was adjourned for two months. The case was listed before V. S. Dave, J. on 8. 10. 1990, when none appeared for the petitioner, although, Shri D. K. Soral, Advocate, was present on behalf of the respondents, and the matter was adjourned for three weeks. Thereafter, the matter was put up before me on 3. 09. 1991, but, when the case was called before 'lunch', Smt. Maya Bansal, Advocate, who appeared on behalf of the petitioner, prayed that the case be passed over as B. L. Samdariya Advocate was busy in another Court, and even thereafter, when the case was taken up after 'lunch', Shri Samdariya did not turn up, and at the request of Smt. Maya Bansal, the case was adjourned. The matter was put up before Mrs. Mohini Kapur, J. , on 7. 10. 1991, when again, none appeared before the Court, and the matter was adjourned for two weeks. The case was put up before me on 6. 05. 1992, when again, none appeared on behalf of the petitioner before the Court, although, Shri D. K. Soral, Advocate, was present on behalf of respondent No. 3, the University of Ajmer, and as such, the writ petition was dismissed in default, and at the request of Shri Soral, it was made clear that the interim order dated 21. 11. 1989, passed by this Court, stood vacated. Thereafter, this application has been filed on behalf of the petitioner on 11. 05. 1992, through Shri B. L. Samdariya, Advocate, for restoration of the writ petition, dismissed in default. In this application, it has been stated that Shri B. L. Samdariya had to remain in the city of Ajmer on 4th, 5th and 6. 05. 1992, in connection with the marriage of her real niece, and as such, he could not attend the Court and argue the case, and that on the morning of 6. 05. 1992, he had asked Shri R. N. Mathur, Advocate, to appear before the Court and seek an adjournment, but Shri R. N. Mathur, Advocate, remained busy in some other Court and he too could not appear before the Court when the case was called, and that there was sufficient reasons for the absence of Sarv Shri B. L. Samdariya and R. N. Mathur, Advocates. It has thus been prayed that the writ petition be restored. The application has been opposed on the grounds that there is no sufficient cause for restoration thereof; and that even on legal aspect, the applicant having secured less than 45 per cent marks in her degree examination, was not entitled to admission to LL. B. Course in view of Ordinance-252 of the Ordinances of the University of Ajmer. On the pleadings of the parties, the following issues were framed by me on 14. 09. 1992: - "1. Whether there is sufficient cause for restoration of the writ petition dismissed in default on 6. 05. 1992 ? 2. Relief?" With the consent of the learned counsel for the parties, they were given liberty to file affidavits, which would be read as statements in examination-in-chief of the deponents and liberty was given to the opposite party to cross-examine the deponents. Affidavits of Sarva Shri B. L. Samdariya and R. N. Mathur, Advocates, were filed on behalf of the applicant. I have heard the learned counsel for the parties and have also perused the record of the case. My findings on the above said issues are as under: As noted above, the writ petition had been filed by the applicant-petitioner through Shri B. L. Samdariya and Smt. Maya Bansal, Advocates. Although, in the application, it has been stated that Shri Samdariya remained in the city of Ajmer from 4th to 6. 05. 1992, in connection with the marriage of his real niece and had informed Shri R. N. Mathur, Advocate, on telephone, to appear before this Court and seek an adjournment, no reason is coming forward as to why the other counsel for the petitioner-applicant, i. e. , Smt. Maya Bansal, Advocate, did not care to appear in the Court on the date concerned, specially when, it was not disputed that her name appeared in the cause-list and she continues to work as an associate of Shri B. L. Samdariya, Advocate. In the application, it is also not stated as to when was the marriage of the niece of Shri Samdariya fixed for and as to why he could not make an application before hand for adjournment of the case on the ground that he would not be in a position to come and attend the Court. This aspect of the matter is not mentioned even in the affidavit of Shri Samdariya, and in the affidavit filed by Shri R. N. Mathur, Advocate, he has merely stated that he was busy in some other Court when the case was called, and as such, he could not appear, and the affidavit does not even mention the time when the case was called and dismissed in default, and if at all, Shri R. N. Mathur, Advocate, ever appeared in the Court on the date concerned. It is, however not disputed that Shri R. N. Mathur never came to the Court to inform that he had been instructed by Shri B. L. Samdariya, Advocate, to seek an adjournment in this case on the ground that he was busy in connection with the marriage of his niece. There is thus no explanation not only about the absence of Smt. Maya Bansal, Advocate, but also about Shri R. N. Mathur, Advocate, not at all having appeared in the Court to inform that he had been requested by Shri Samdariya to make a request for adjournment, or as to why Shri Samdariya did not feel it necessary to make an application for adjournment on the ground of the marriage of his niece. It appears that after having got an interim order in her favour, the applicant was interested in prolonging the matter, and as such, not only on the date concerned, but also, on earlier dates noted above, no appearance was made on her behalf as and when the case was put up before the Court, and whenever any appearance was made on her behalf, instead of addressing arguments for admission, request for adjournment was made on one ground or the other. I am, therefore, of the view that there was no sufficient cause for the absence of the applicant or her counsel on 6. 05. 1992, when the case was dismissed in default.
(3.) IT has been contended on behalf of the applicant that the applicant should not suffer for the mistake of her lawyer. Reliance has been placed on a Single Bench decision of this Court in the case of Mohammad Abdul Latif Shah vs. Nasir Khan and others (1) and on the decision of the Apex Court in the case of Rafiq and another vs. Munshilal and another In Mohammad Abdul Latif Shah's case (supra), the facts were that due to a bona fide mistake, a wrong date of hearing was noted by the counsel, and because of this fact, he failed to appear in the Court on the date when the case was catted and dismissed in default, and it was held that because of a bona fide mistake of the counsel, the litigant could not be allowed to suffer: In the case of Maula Bux (deceased) represented by his Legal Representatives vs. Sohan Lal (3), after discussing also the decision of the Apex Court in Rafiq's case (supra), I had held that the authorities were on their own facts, and that it could not be said that the Apex Court had laid down that the matters dismissed in default should be restored as a matter of course to give liberty to the parties or their Advocates to appear or not to appear in the Court according to their wish, desire and convenience, and that if this interpretation was given to the authorities of the Apex Court, it would mean that the parties and their learned counsel could put the working of the Court out of gear at any time, and, no such intention could be imputed to the Apex Court. It was held that the cases dismissed in default could be restored only on sufficient cause being shown. The decision in Maula Bux's case (supra) was approved by a Division Bench of this Court in D. B. Civil Miscellaneous Restoration Application No. 227/91 in D. B. Civil Special Appeal (Writ) No. 411/91, decided on 21. 05. 1992 (4 ). ;