1. Writ petition dismissed for default — Application for restoration rejected by High Court on grounds of delay and insufficient cause. (Para 4 , 5 )
Back
Next 
2000 Supreme(SC) 164
SUPREME COURT OF INDIA
D.P.Mohapatra : S.B.Majmudar
Hashmatullah
Versus
District Magistrate/adhyaksha Zila Parishad Basti
Case No. : 480 of 2000
Date of Decision : 1/21/00
Important Points
A writ petition dismissed for default may be restored if the non-appearance was caused by the cause list omitting party names and the restoration application was filed promptly upon the party gaining knowledge of the dismissal.
Subject
Civil Law - Procedural Law
Act Referred
Headnote
(A) Writ Jurisdiction - Restoration of petition dismissed for default - Sufficient cause for non-appearance - Cause list omitting names of parties - If the cause list mentions only the name of the counsel and not the parties, the counsel may not be aware that a particular case is posted for hearing, especially when handling multiple matters - Such a circumstance constitutes sufficient cause for default in prosecution. (Para 6)
(B) Condonation of Delay - Restoration application - Knowledge of dismissal - If a restoration application is moved within a few days of the party becoming aware of the dismissal for default, it cannot be termed as highly belated. (Para 6)
Facts of the case:
A writ petition was dismissed for want of prosecution due to the non-appearance of the counsel. It was subsequently discovered that the cause list for the relevant date did not show the names of the parties, listing only the name of the counsel. The petitioner filed for restoration within two days of learning about the dismissal. The High Court refused to restore the petition, characterizing the application as highly belated and the cause for default as insufficient.
Findings of Court:
The reasoning of the High Court was unsustainable because the omission of party names in the cause list could reasonably lead to the counsel's lack of information regarding the posting of the case. Furthermore, the prompt filing of the restoration application immediately after gaining knowledge of the dismissal negates the finding that the application was highly belated.
Issues: Whether the omission of party names in the cause list constitutes sufficient cause for non-appearance and whether the restoration application was filed with undue delay.
Ratio Decidendi: The court held that the absence of party names in the cause list is a valid ground for the counsel's non-appearance. Additionally, the timeliness of a restoration application should be evaluated based on when the party actually became aware of the dismissal.
Result: Appeal allowed.
(B) Condonation of Delay - Restoration application - Knowledge of dismissal - If a restoration application is moved within a few days of the party becoming aware of the dismissal for default, it cannot be termed as highly belated. (Para 6)
Facts of the case:
A writ petition was dismissed for want of prosecution due to the non-appearance of the counsel. It was subsequently discovered that the cause list for the relevant date did not show the names of the parties, listing only the name of the counsel. The petitioner filed for restoration within two days of learning about the dismissal. The High Court refused to restore the petition, characterizing the application as highly belated and the cause for default as insufficient.
Findings of Court:
The reasoning of the High Court was unsustainable because the omission of party names in the cause list could reasonably lead to the counsel's lack of information regarding the posting of the case. Furthermore, the prompt filing of the restoration application immediately after gaining knowledge of the dismissal negates the finding that the application was highly belated.
Issues: Whether the omission of party names in the cause list constitutes sufficient cause for non-appearance and whether the restoration application was filed with undue delay.
Ratio Decidendi: The court held that the absence of party names in the cause list is a valid ground for the counsel's non-appearance. Additionally, the timeliness of a restoration application should be evaluated based on when the party actually became aware of the dismissal.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. High Court held the restoration application was highly belated and the cause for default in prosecution was insufficient. (Para 5 )
3. Omission of party names in the cause list justifies counsel's absence; restoration application filed promptly upon knowledge of dismissal. (Para 6 )
4. Absence of party names in the cause list constitutes sufficient cause for default in prosecution for the purpose of restoring a petition. (Para 6 )
5. Appeal allowed — Impugned order set aside — Writ petition restored to the High Court for decision on merits. (Para 7 )
6. Does the omission of party names in a cause list constitute sufficient cause for a counsel's absence leading to dismissal for default?
Yes. If the cause list mentions only the counsel's name and not the parties, the counsel may not be aware that a specific case is posted, providing sufficient cause for default. (Para 6 )
7. How is the timeliness of a restoration application evaluated when the party was unaware of the dismissal?
The timeliness is assessed from the date the party becomes aware of the dismissal; filing a restoration application shortly after gaining knowledge is not considered highly belated. (Para 6 )
8. What is the effect of a contesting respondent failing to file a counter-affidavit to a restoration application?
The court considers the lack of a counter-affidavit when evaluating the merits of the affidavit supporting the restoration application. (Para 6 )
(1) LEAVE granted.
(2) WE have heard learned counsel for Respondent 1 who is the only contesting respondent in these proceedings. Respondents 2 and 3 are deemed to have been served on expiry of 30 days from the date of issuance of notice, as seen from office report of 5/5/1998/21/5/1998.
(3) IN our view, in the writ petition when the dismissal order passed by Respondent 1 was challenged he can be treated to be the contesting party.
(4) THE impugned order is the one by which the High Court refused to restore the writ petition which was dismissed for default. It appears that the petition filed by the appellant before the High Court being Writ Petition No. 33529 of 1992 was dismissed for want of prosecution on 16/2/1993. The order read as under:
"LIST has been revised. Nobody is present to press this petition. It is accordingly dismissed for want of prosecution."
(5) NOW it transpires that in the cause list of the relevant date the names of the parties were not shown and that was the reason why learned counsel for the appellant could not remain present. The appellant came to know about the dismissal of his petition for default on 4/7/1995 and then the petition for restoration was filed. The impugned order states that the restoration application is highly belated and the application for condonation of delay in moving it has already been rejected by the order of date passed on the delay condonation application. On merits also the cause for default in prosecution of the petition, which led to its dismissal, is not sufficient.
(6) IN our view, once in affidavit supporting the restoration application it is stated that the appellant came to know about the dismissal of his petition for default of appearance only on 4/7/1995 and once restoration application was moved in 2 days thereafter it is difficult to appreciate how it can be said that the restoration application was highly belated. It is also difficult to appreciate how it can be observed that on merits the cause for default in prosecution of the petition, which led to the dismissal of the writ petition, is not sufficient, when the cause list itself showed that the names of the parties were not mentioned and only the name of the counsel was mentioned. Thus counsel may not get information about posting of the case. The counsel may have a number of matters on the date in question. Naturally he may not know that the particular case was posted for hearing on that day unless names of the parties are also shown in the cause list. Consequently the reasoning adopted by the High Court for passing the impugned order cannot be sustained. It has also to be kept in view that the contesting respondent opposing the restoration application did not file any counter-affidavit to the affidavit filed by the appellant in support of the restoration application.
(7) FOR all these reasons, therefore, this appeal is allowed. The impugned order is set aside. The dismissal of Writ Petition No. 33529 of 1992 is also set aside and the said writ petition is restored to the file of the High Court with a request to proceed with the same in accordance with law after issuing notices to the parties concerned and decide the writ petition on merits.
(8) AS the remanded proceedings are of the year 1992 it will be open to the appellant to request Honble the Chief Justice of the High Court to get the matter fixed at the earliest.
(9) NO costs.
