IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.315 OF 2009 (Arising out of S.L.P. (C) No.2576 of 2007)

Ashutosh Gaur        ...Appellant(s)

Versus

New Delhi Municipal Council & Anr.       ...Respondent(s)

O  R  D  E  R

Leave granted.

The  suit  for  declaration  and  injunction  filed  by  the  appellant  was

dismissed in default on the ground of non-appearance of his advocate.  The petition

for  restoration was dismissed by the  Trial  Court  on  14.10.2008.   That  order was

confirmed by the Additional District Judge who dismissed the appeal preferred by the

petitioner and the High Court dismissed the revision filed against appellate order.

Hence, this appeal by special leave.

Having heard learned counsel for the parties and perused the records, we

are  convinced  that  in  the  facts  and  circumstances  of   the   present   case   non-

appearance  of the

advocate of the petitioner cannot be treated as intentional and  

the  Trial  Court  should  have  restored  the  suit  to  its  original  file.   The  learned

Additional  District Judge  and  the High

....2/-

- 2 -

Court confirmed the order of dismissal of restoration application without properly

appreciating the fact that the petitioner was not to be blamed for non-appearance of

his advocate.  Therefore, the impugned orders are liable to be set aside.

Accordingly, the appeal is allowed, impugned orders are set aside and the

suit  is restored to the file  of  the Trial  Court  which  shall  now decide the same in

accordance with law.

......................J.       [B.N. AGRAWAL]

......................J.       [G.S. SINGHVI]

New Delhi, January 19, 2009.