HALI SAHU Vs. KAHNEI MOHARANA AND ORS.

JUDGEMENT

(1.) THIS is an application under Section 482 , Code of Criminal Procedure for restoration of a petition for special leave under Section 378, Code of Criminal Procedure by the complainant.

(2.) SINCE there was no appearance on 20 -2 -1989 when the matter was called for hearing on the question of grant of special leave, the petition for special leave was dismissed for default. This application has been filed to restore the petition by recalling the order alleging that Mr. S.D. Das, Advocate who was to make submission understood that High Court Bar Association had decided and resolved to pray to the Court for declaring the Court as closed due to lunar eclipse and was told that Courts had risen for the day and under that erroneous impression left the Court premises. As the dismissal was on account of such erroneous impression of the Advocate engaged, prayer has been made to restore the same.

(3.) PETITIONER belongs to district of Ganjam, a far away place from Cuttack, the seat of the High Court. He entrusted the brief to his Advocate with confidence that the case would be properly presented by his lawyer. If there would have been any rule made under the Advocates Act or even by the Bar Association that the lawyers can abstain from appearing from Court by resolution, possibly he would have engaged a peon who is not bound by such rules under the Advocates Act or of the Bar Association. He is not responsible for the dismissal for default in any manner in entrusting the brief to Mr. Das. In such circumstance, Supreme Court in the decision reported in <casesrefered> : A.I.R. 1981 S.C. 1400 ( Rafig and Anr. v. Munshilal and Anr.</casesrefered>) it was observed: