- (1.) THE facts giving rise to the filing of this Application, briefly stated, are that on 15. 4. 94 when the above noted Appeal was taken up for hearing, neither the appellant nor his counsel was present in court. Shri N. . R. Choudhary, learned counsel for respondent No. 2, was heard and the Appeal was decided by this court on merits.
(2.) BRIEFLY stated the facts of the case are that Rajasthan Government issued a Notification which was duly published on 2. 1. 80 under section 4 of the Rajasthan Land Acquisition Act (for short 'the Act') for acquisition of certain lands situated in Phulera (Jaipur) including 8 bighas of land in Khasra No. 474 belonging to the appellant. After compliance of necessary legal formalities, physical possession of the land in question was taken over on 19. 7. 80 by the Tehsildar, Phulera and handed over to Rajasthan State Industrial Development & Investment Corporation Ltd. (For short 'riico'), Udhyog Bhawan, Jaipur (respondent No. 2 herein) for whose benefit the land was acquired for the public purpose of establishment of industrial estate. The Land Acquisition Officer, Jaipur after examining all relevant evidence on the record, pronounced his award on 29. 11. 80 which was subsequently amended on 27. 4. 84 as indicated above. Since the land was agricultural and not industrial, the Collector awarded compensation at the rate of Rs. 1500/- per bigha which was directed to be paid under the amended award to the appellant with interest at the rate of 4% per annum and solatium at the rate of 10% from the date of taking over of possession of the land till passing of the award. The reference for enhancement of compensation was made under Section 18 of the Act claiming compensation at the rate of Rs. 17/- per sq. metre plus other amounts towards damages and compensation. The said reference came up for hearing before the Civil Judge, Jaipur District, Jaipur and the concerned trail court vide its order date 18. 5. 87, while partly allowing the Reference Application, directed that compensation at the rate of Rs. 2500/- per bigha be paid to the appellant besides solatium at the rate of 30% and interest at the rate of 9% per annum on the enhanced amount of compensation. It will be pertinent to mention here that the appellant himself had claimed compensation at the rate of Rs. 2500/-per bigha and he having received the said amount, was still not satisfied with the award and challenged the same in Appeal before this court. The Appeal was heard with the assistance of Shri Choudhary, learned counsel for respondent No. 2, and the relevant record was perused by me. It is admitted case of parties that the dispute in Appeal was only regarding quantum of compensation which was initially awarded at the rate of Rs. 1500/-per bigha by the Collector, Jaipur against a sum of Rs. 2500/- per bigha as claimed by the appellant. The compensation amount of Rs. 1500/- per bigha was subsequently enhanced by the Civil Judge, Jaipur on a reference made by the Land Acquisition Officer through the Collector, Jaipur under Section 18 of the Land Acquisition Act. What in fact the appellant claimed, he got it as increased compensation by the impugned order of the Civil Judge, Jaipur dated 18. 5. 87 which has been assailed in the present appeal. While disposing of the above noted appeal on 15. 4. 94 this court came _ to the conclusion that it was not open to the appellant to approbate and reprobate in the same breath and now to take a contrary stand before this court and he was therefore, stopped by his own conduct, act and acquiescence from pleading to the contrary on the principle of estoppel which is fully attracted to the facts of the present case. This court further came to the conclusion that the learned Civil Judge has given a very well reasoned judgment after examining the relevant evidence on the record and his finding with regard to issue Nos. 1 and 2, are well founded and not assailable in the present appeal. It was further observed by this court that with regard to issue No. 1 the learned Civil Judge has observed that the land in question was not industrial but agricultural land inasmuch as there is a clear difference between irrigated and non-irrigated land for determining the question of compensation. Since the present land in question was non-irrigated, therefore, the amount of compensation was rightly enhanced and awarded at the rate of Rs. 2500/- per bigha and accordingly issue No. 1 was decided against the appellant. With regard to issue No. 2, the Civil Judge, Jaipur has so opined that in view of the clear difference between irrigated and non-irrigated land, the appellant was entitled to enhanced compensation at the rate of Rs. 2500/- per bigha instead of Rs. 1500/- per bigha, as awarded earlier by the Collector. Issue No. 3 was considered not relevant for disposal of the appeal as it pertains to limitation and the period of limitation was rightly construed from the date of the amended award and the reference was held to be within limitation by the Civil Judge. After hearing the learned counsel for respondents and perusing the record, this court came to the conclusion that the Civil Judge, Jaipur was perfectly right in recording well reasoned findings in his order dated 18. 5. 87 by decreeing the claim of appellant to Rs. 2500/- per bigha with solatium at the rate of 30% per annum and interest at the rate of 9% per annum from the date of taking over of the possession of the land in question till passing of the award. It was further directed that the payment of amount of interest and solatium would be effective from the date of reference on the enhanced amount.
(3.) WITH the above direction, the appeal was disposed of by this court with no order as to costs on 15. 4. 94. On 12. 5. 94 the above application under Section 151 C. P. C. read with Order 41 Rule 19 was filed by the appellants/petitioners through their advocated Shri Samandar Singh, duly supported by an affidavit of Shri B. L. Mandhana, Advocate. The grounds taken in the said application are that neither the appellants nor their counsel Shri Samandar Singh were present in the Court when the appeal was called on for hearing and was decided on merits on 15. 4. 94. It is further contended by the learned counsel for the appellants that in view of Order 41 Rule 17 C. P. C, this court was not empowered to dismiss the appeal on merits but the appeal could only be dismissed for default of the appellant in not appearing before the court. It has been further contended in the said application that dismissal in default under Order 41 Rule 17 C. P. C. can be set aside under Order 41 Rule 19 C. P. C. and the appeal can be re- admitted for hearing. It has been further argued in the said application that the name of counsel for the appellant (Shri Samandar Singh), did not appear in the cause list dated 15. 4. 94 and due to this bona fide mistake he had failed to appear before the Hon'ble court when the appeal was called on for hearing and that his absence was not due to his negligence or carelessness. It has been stated in the said application in para No. 6 that Shri B. L. Mandhana, Advocate had long before withdrawn his power and Shri D. C. Sharma, Advocate, practices in the subordinate courts. Shri Samandar Singh, Advocate, was the counsel in charge. In view of the above circumstances, the appellants prays for restoration of the appeal and for recalling the order dated 15. 4. 94 passed by this court deciding the appeal on merits. It is settled practice that whenever a party is represented through counsel in a court, unless there is a specific order passed by the court allowing the advocate, who was earlier representing the appellant, to get discharged from the case, the said counsel is supposed to not only watch the interest of the client but also represent him in court as and when he is called upon to do so, more particularly when his name appears in the cause list along with other counsel. In this case Shri B. L. Mandhana, Advocate, was engaged as a counsel by the appellants which is clearly apparent from the 'vakalatnama' duly executed by the appellants in favour of the said advocate on 12/18. 2. 88. Shri Samandar Singh, Advocate, was subsequently engaged by the said appellants on 13. 9. 91, as is evident from the 'vakalatnama' duly executed by the appellants in favour of the said advocate on the record. On 15. 4. 94, when the appeal was taken up by this court, neither the erstwhile counsel Shri B. L. Mandhana, nor subsequently engaged counsel Shri Samandar Singh, were present before the court. Shri N. R. Choudhary, counsel for the respondents, was present in court and argued the matter on behalf of the respondents. Perusal of the cause list dated 15. 4. 94 clearly reveals the name of Shri B. L. Mandhana with Shri D. C. Sharma, Advocates for the appellants, and that of Shri N. R. Choudhary for the respondents. If Shri Mandhana has ceased to be a counsel as per the contention of the appellants, it was the duty of the erstwhile counsel to have informed the court at the time of hearing of the appeal that since he has ceased to be the counsel for appellants, he may be discharged from the proceedings. On the contrary, neither Shri Mandhana was present nor Mr. Samandar Singh was present in the court at the time when the appeal was taken up for hearing and both the advocates had defaulted from not appearing before the court. In these circumstances, I am of the view that court could not take judicial notice as to which counsel was actually representing the interest of the appellants and that the court was not obliged to wait indefinitely for the counsel to appear, particularly when the conduct of the appellants in the past has been such that the matter has been dismissed in default thrice i. e. on 9. 7. 92, 22. 4. 92 and on 30. 3. 93. On 22. 4. 92 none was present for the petitioner and the appeal was released from the board as part-heard. ;