1995 Supreme(MP) 1179

IN THE HIGH COURT OF MADHYA PRADESH
T.S. DOABIA, J.
Vivekanand Medical Store – Appellant
Versus
State of M.P. – Respondent
M.P. No. 1840 of 1990 (G)
Decided On : 05-05-1995

Headnote:Civil Procedure Code, 1908 – O. 41 R. 19 and 17 – appeal dismissed in default of appearance – counsel unable to appear – litigant cannot he punished for lapse of the counsel – appeal restored.

        Short Note

       1. This petition has been preferred against an order, annexure P/6. It is apparent from the order that this was dismissed in the absence of the petitioner. In para 8 of the petition, it has been stated that the counsel for the petitioner was unable to attend the Court on that date.

       2. It is settled law that a litigant should not be suffered on account of the lapses of the counsel. Such was the view expressed by the Supreme Court in the case of Rafiq and another v. Munshilal and another, AIR 1981 SC 1400.

       3. As the appeal was dismissed in default and no order was passed on merits, the appellate authority is directed to hear the matter and decide the appeal on merits. The appellate authority would send a notice to the petitioner for appearance and the case would be taken up for hearing alter the petitioner is duly served. The order annexure P/6 is quashed.

       4. The learned counsel for the State has argued that it is not necessary to dispose of the matter on merits as the period for which the application was given has since expired. This is not the correct appreciation of the legal position. The consideration which prevail in the matter of grant of licences and the renewals are entirely different.

       The order annexure P/6 is quashed.