Parties should not suffer for counsel's inadvertent mistakes, and uncontroverted affidavit claims must be accepted, reinforcing principles of natural justice.

ORDER :

A.C. Behera, J.

1. This is a CMAPL under Chapter 8 of Rule 30 of the ORISSA HIGH COURT RULES read with Section 151 of the CPC , which has been filed by the petitioners (those were the appellants in the 2^nd Appeal vide S.A. No.95 of 1990) against the Opposite Parties (those were the respondents in the 2^nd Appeal vide S.A. No.95 of 1990) praying for setting aside the dismissal Order dated 12.08.2024 passed in the 2^nd Appeal vide S.A. No.95 of 1990 and to restore the same.

2. It is the case of the petitioners in this CMAPL supported with an affidavit that, they (petitioners) were the appellants in the 2^nd Appeal vide S.A. No.95 of 1990. That 2^nd Appeal vide S.A. No.95 of 1990 was listed before this Court on 12.08.2024 for hearing, but, on that day, when as per the list, the said 2^nd Appeal vide S.A. No.95 of 1990 was placed before the Court for hearing, at that time, the learned counsel for the petitioners could not remain present in the Court due to missing out the number of S.A. No.95 of 1990 from the list inadvertently, for which, none could remain present before the Court on behalf of the petitioners for hearing of the 2^nd Appeal vide S.A.No.95 of 1990 on 12.08.2024. Therefore, that 2^nd Appeal vide S.A. No.95 of 1990 of the petitioners (appellants) was dismissed on 12.08.2024 for the default of the petitioners.

3. So, after dismissal of the 2^nd Appeal vide S.A. No.95 of 1990 of the petitioners on dated 12.08.2024, they (petitioners) filed this CMAPL praying for setting aside that dismissal order and to restore the same to its original stage on the ground that, the poor litigants i.e. the petitioners (those were the appellants in S.A. No.95 of 1990) should not suffer for the fault of their counsel.

4. Except the Opposite Party Nos.2(a) to 2(d), no other Opposite Parties has appeared in this CMAPL in spite of sufficiency of notices of this CMAPL on them.

Likewise, none of the Opposite Parties including Opposite Party Nos.2(a) to 2(d) has filed any objection in this CMAPL filed by the petitioners.

5. Heard the CMAPL from the learned counsel for the petitioners and the learned counsel for the Opposite Parties Nos.2(a) to 2(d).

6. Due to non-filing of any objection by any of the Opposite Parties disputing/denying the averments of this CMAPL made by the petitioners, the averments made by the petitioners in this CMAPL supported with an affidavit have remained uncontroverted.

7. When, it has been specifically stated by the petitioners in this CMAPL that, only for an inadvertent mistake of their learned counsel due to missing out the number of the S.A. No.95 of 1990 from the list on dated 12.08.2024, he could not remain present in the Court on that day to represent them (petitioners/appellants) and they (poor litigants) should not suffer for the above unintentional inadvertent mistake of their counsel and in case of non-restoration of the S.A. No.95 of 1990 for hearing, they (petitioners) shall be prejudiced seriously being debarred from the natural justice and when their above averments made in their petition supported with an affidavit have remained uncontroverted, then, at this juncture, there is no justification under law to disallow the prayer of the petitioners made in the CMAPL.

8. The reasons assigned above for restoration of the 2^nd Appeal vide S.A. No.95 of 1990 on the basis of the factual positions as discussed above finds support from the ratio of the following decisions:

(i) (1981) 2 SCC 788 : Rafiq and Another Vs. Munshilal and Another (Para No.3) & (1991)CLT:566:Sambari Bewa Vs. Banita Bewa & Others—Party should not suffer for inaction of his counsel.