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2018 Supreme(All) 1878
IN THE HIGH COURT OF ALLAHABAD
MAHESH CHANDRA TRIPATHI, J.
Lalaram - Appellant
Versus
State of U.P. - Respondent
Writ-C No. 18470 of 2018
Decided On : 21-05-2018
For the Appellants :Yogendra Singh Bohra and Pankaj Kumar, Advocates
For the Respondents:C.S.C. and Manu Singh, Advocate.
A litigant should not suffer for the fault of his counsel, as established in legal precedents cited by the court.
Headnote:
UP ZA & LR Act - Land Dispute - Section 333, Section 122B (4A) - Summary: The court examined the petitioner's use of the disputed land as abadi and the initiation of proceedings under Section 122B of UP ZA & LR Act. The court referred to legal provisions and interpretations from various cases to conclude that the petitioner should not suffer for the fault of his counsel. The impugned orders were set aside, and the matter was remanded for a fresh decision.
Fact of the Case:
The petitioner contested the order passed by the Collector and the Tehsildar/Assistant Collector, 1st Class, regarding a land dispute, claiming that the land was being used as abadi and had trees. The petitioner's counsel had died during the proceedings, and the revisional court dismissed the claim on the merits.
Finding of the Court:
The court found that the petitioner's objection was not considered, and the impugned orders were passed ex-parte due to the death of the petitioner's counsel. The court referred to legal precedents to conclude that the petitioner should not suffer for the fault of his counsel.
Issues: The issues revolved around the petitioner's use of the disputed land, the dismissal of the claim, and the impact of the petitioner's counsel's death on the proceedings.
Ratio Decidendi: The court's decision was influenced by legal principles stating that a litigant should not suffer for the fault of his counsel, as established in various cases cited by the court.
Final Decision: The impugned orders were set aside, and the matter was remanded back to the second respondent for a fresh decision, affording an opportunity of hearing to all stakeholders.
MAHESH CHANDRA TRIPATHI, J.
1. Heard Shri Y.S. Bohra, learned counsel for the petitioner; Shri Rajesh Yadav, learned Standing Counsel for the State respondent nos.1 and 2 and Shri Manu Singh, learned counsel for the respondent nos.3 and 4.
2. The petitioner is assailing the order dated 30.10.2017 passed by the Collector, District Kasganj in Revision No.D0201718750367 (Lalaram vs. Gram Sabha) under Section 333 read with Section 122B (4A) of UP ZA & LR Act and the order dated 29.3.2014 passed by the Tehsildar/Assistant Collector, 1st Class, Tehsil Sadar, District Kasganj in Case No.7 of 2012 (Gram Sabha vs. Lalaram) under Section 122B of UP ZA & LR Act.
3. Shri Y.S. Bohra, learned counsel for the petitioner submits that the father of the petitioner was using the land in dispute as abadi and the house of the petitioner is situated on the land in dispute since long time. The report of the Revenue Inspector itself indicated that the land in dispute was being used by the petitioner as abadi. Earlier the proceeding under Rule 115C of UP ZA & LR Rules was initiated against the father of the petitioner in the year 1959 and the same was registered as Suit No.290 of 1959 (Gram Sabha vs. Bhagi @ Bhagwant). The aforesaid suit was decided in his favour. After the death of his father, the petitioner is using the land in dispute as abadi and there were several trees of Shisham, Neem, Mango, Jamun etc. The proceeding under Section 122B of UP ZA & LR Act has been initiated against the petitioner and Sri Narendra Kumar Saxena, Advocate was appearing and doing pairavi on behalf of the petitioner before the second respondent. The Advocate of the petitioner had died during the pendency of the aforesaid proceeding before the second respondent and the same has been finalized against the petitioner ex-parte on 29.3.2014. The petitioner has also taken categorical objection while filing the revision in question but at no point of time, the said objection has been considered by the revisional Court and the same has been dismissed on 30.10.2017.
4. On the other hand, Shri Rajesh Srivastava, learned Standing Counsel submits that the impugned orders have been passed strictly in accordance with law. There is no infirmity or illegality in the impugned orders and the writ petition is liable to be dismissed.
5. The Court has proceeded to examine the record in question and finds that the proceeding under Section 122B has been finalized against the petitioner ex-parte on 29.3.2014 on account of death of the petitioner's counsel, who was representing before the second respondent. The categorical objection has also been taken by the petitioner while filing the revision in question but the revisional court has not taken any sympathetic view and non-suited the claim of the petitioner on the merits of the case on 30.10.2017.
6. In Rafiq and anr vs. Munshilal and anr AIR 1981 SC 140 and Smt. Lachi Tewari and ors vs. Director of Land Records and ors 1984 Supp. SCC 431, Hon'ble Supreme Court, while dealing with a similar issue, held that a litigant cannot suffer for the fault of his counsel. The Hon'ble Supreme Court in the former case observed as under:
"What is the fault of the party who having done everything in his power expected of him, would suffer because of the default of his advocate.... The problem that agitates us is whether it is proper that a party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.... We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted."
7. Similar view has been reiterated in Goswami Krishna Murarilal Sharma v. Dhan Prakash and Ors. (1981) 4 SCC 474, where the counsel had withdrawn his Vakalatnama without notice to his client. The Hon'ble Supreme Court following its earlier judgment in Rafiq (supra), held that the Court should not have proceeded to dismiss the appeal straightaway on the ground that the appellant was not present in person when his counsel
