IN THE  SUPREME COURT OF INDIA                 CIVIL  APPELLATE  JURISDICTION                                   CIVIL APPEAL NOS.  2051-2052  OF 2009   

 (Arising out of SLP(C) Nos. 2135-2136/2008)

 Lakhi Narayan Sonowal ..   Appellant(s)

                    Versus

State of Assam & Anr. ..   Respondent(s)                                                           O R D E R

Leave granted.

These appeals are directed against two orders, dated 22nd August, 2007 and

17th September, 2007, passed by the Gauhati High Court at Gauhati respectively in

Writ Appeal No. 298 of 2007 and Miscellaneous Case No. 3254 of 2007.   By the first

order, the appellate Bench of the High Court dismissed the appeal preferred by the

appellant for non-prosecution as his  counsel failed to appear in Court and by the

latter order,   application seeking recall  of  order  dated August 22,  2007 has  been

dismissed.

It appears that on dismissal of the appeal on August 22, 2007, an application

for recall of the said order was filed on August 24, 2007, wherein it was pleaded that

counsel for the appellant could not appear in Court because of the confusion created

by the Bandh call given by a Socio-political organisation, followed by motor strike,

which  

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C.A. Nos. 2051-2052/2009...contd...

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disrupted the normal life.   Rejecting the plea of the appellant,  the Division Bench

observed thus :

"On  22.8.07  this  Court  functioned  normally  and  the  learned Advocates appeared in many cases and, therefore, we are not inclined to accept  that  the  learned  counsel  for  the  petitioner  was  prevented  by reasons beyond his control.

We  see  no  merit  in  this  application.   The  application  is dismissed."

Hence the present appeals.

We have heard learned counsel for the parties.

It is true that no Court is obliged to adjourn a case because of the difficulty

of a counsel and as a matter of fact it is the solemn duty of every Court to proceed

with the judicial business fixed for the day yet in an appropriate case where no fault

lies at the door of the litigant, the Court should not  be in a hurry to dismiss the case

in default or for non-prosecution on account of absence of his counsel.  Ultimately, it

is the litigant who is to suffer the consequences of such an order.  In any case the

Court should  be  considerate while dealing with an application for recall of dismissal

or ex-parte order and if a justifiable cause for non-appearance of the counsel is made

out,such an order may be recalled, subject of course to the conditions the Court may

like to impose.       

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C.A. Nos. 2051-2052/2009...contd...

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Having perused the application filed by the appellant  for recall  of  order

dated 22nd August, 2007, which has been  

placed on record, we are convinced that it was a fit case where the Appellate Bench of

the  High Court should have exercised its jurisdiction and recalled the said order,

dismissing the appeal for non-prosecution.

Accordingly, the appeals are allowed, orders dated 22nd August, 2007 and

17th September, 2007 are set aside and  writ appeal is restored to its original position

for disposal on merits in accordance with law.

No order as to costs.

                                       ...................J.            [ D.K. JAIN ]  

                                       ...................J.                                     [ R.M. LODHA ]                         

NEW DELHI, MARCH 27, 2009