A restoration application is not maintainable if a writ petition has been decided on its merit, even in the absence of counsel for the petitioner.

1. - Heard on the restoration application.Learned Counsel submits that petition was listed at No. 46 in the cause list on 9.8.2012, but due to fault of his office clerk, it was mentioned at item no. 138 in the list prepared for the counsel. He could not appear at time of hearing and petition was decided on merit. In view of the aforesaid, writ petition may be restored to its original number and be heard again. He has given reference of various judgments of Hon'ble Apex Court and of this court to show that even a restoration application is maintainable against final judgment.

2. Learned counsel for non-petitioner opposed the prayer for restoration. It is submitted that writ petition was not dismissed in default, but has been decided on its merit thus restoration application is not maintainable. If petitioner is at all aggrieved by the judgment, he could have maintained review petition or preferred a special appeal before Division Bench.

I have considered the submissions made by the parties.

3. The reason for non-appearance has been given in the application. It was due to fault of office clerk of learned counsel that writ petition was referred at item no. 138 in the list separately prepared for counsel's convenience, whereas it was listed at no. 46. The counsel could not appear at the time when case was called, accordingly restoration application has been filed.

4. The issue for my consideration is as to whether restoration application is maintainable if writ petition has been decided on its merit though in absence of counsel for petitioner.

5. Learned Counsel for petitioner has cited various judgments of Hon'ble Supreme Court and of this court. The first judgment is in the case of Sarwan Singh v. Kishan Singh reported in (2007) 13 SCC 574. Therein, referring to Order 41, Rule 19 and Section 151 of Code of Civil Procedure, 1908, it was held that appeal dismissed on merits can be restored. I find discussion of the issue at Paras 4 & 6, which are quoted here-asunder:

"4. An application in terms of Order 41, Rule 19 of the Code of Civil Procedure, 1908 (in short the 'Code') read with Section 151 of the Code was filed to restore the appeal for deciding the same on merits. It was indicated in the application for restoration as to why there was non-appearance on the date fixed. In the application it was categorically stated that the matter was listed at item No. 260 before the learned Single Judge. When the matter was called learned Counsel for the appellant was arguing another matter before a Bench of Hon'ble the Chief Justice. In the case at hand respondents were yet to put appearance. So the assisting counsel was instructed to attend the Court to note the next date. By the time the assisting counsel reached the Court, the matter had already been taken up and dismissed for want of prosecution. It is submitted that the High Court did not take note of the aforesaid factual aspects and on the contrary dismissed the application for restoration on the ground that the matter was decided on merits.

6. As rightly contended by learned Counsel for the appellant the reason for non appearance when the matter was taken up had been indicated. There is no dispute that the factual scenario as projected by the appellant was the correct one. Mere fact that the appeal was dismissed on merits could not have been a ground to refuse restoration. Accordingly, we set aside the impugned order of the High Court and direct restoration of the Second Appeal."

6. Perusal of Para 4 reveals that an application was filed in terms of Order 41, Rule 19 of the Code of Civil Procedure read with Section 151. Therein, restoration application was dismissed without considering argument and due to decision of appeal on merit. If provisions of Order 41, Rule 17 and 19 are looked into, appeal has to be heard in the presence of parties for its decision on merit but it is not a mandate for a writ petition. It is settled law that procedural law of Civil Procedure Code are not