The court has inherent power to act exdebito justitiae to do real and substantial justice, and a sensitive approach is required in the dispensation of justice.

1. We have heard the learned Counsel for the parties on application under Section 5 of the Limitation Act. For the reasons stated in the application the delay of 9 days in filing the special appeal is condoned.

2. At the request of the parties, we have taken up the special appeal for final disposal. The appellant filed an appeal under Section 46 of the Rajasthan Municipalities Act against the order dated 012.2000 passed by the Additional District Judge, Rajgarh. The appeal was admitted. On 04.04.2003 when the matter was called in second round no body appeared as such it was dismissed for want of prosecution. The appellant filed an application for restoration of the appeal. It is averred that the Counsel for the appellant had not received the cause list of the Court concerned. As such he could not give appearance when the matter was called. The learned Judge did not consider it to be sufficient ground for non-appearance, as such refused to restore the misc. appeal.

3. Though we are not impressed with the ground given for non-appearance by the Counsel for the appellant in the restoration application, however, in the interest of justice we consider it appropriate to restore the appeal. This Court has taken a view in Rajasthan State Industrial Development & Investment Corporation Ltd., Jodhpur vs. M/s. Modi Thread Mills, Jodhpur, reported in 2003 (4) RLW 2192 (Raj).

4. The Court has observed as follows:-“A little more sensitive approach is required to be adopted by the Courts in process of dispensation of justice. It is not at all desirable to drive out a party out of Court by way of punishment for

whatever reason. It will also not be fair to attribute every thing to the lawyers for any sort of fault.

There are defects in the system for which entire legal profession is responsible which include the

Judges and Lawyers both. While the legislature has provided a provision for dismissal of a

proceeding for default, it has also provided provision for restoration. It will be travesty of justice if

the Court fails to exercise the power in restoring the proceedings except in rare and for exceptional

reasons. We may remind an age old well established principle that every Court has inherent power

to act exdebito justitiae to do real and substantial justice for which it exists. It has always been

anxiety of the Court to decide an issue on merit instead of driving out a party from the Court for

one or the other technical reason. Even if the party was remiss in complying with the directions of

the Court the appeal could have been restored on payment of cost. Refusal to restore an appeal is

bound to result in a meritorious matter being thrown out and the cause of justice will be defeated.”

In view of the foresaid this Special Appeal is allowed. The order of the learned Single Judge dated 11.09.2003 is set aside. The restoration application is allowed. The Misc. Appeal being No. 238 of 2002 is restored to its original number.