NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.450-452 OF 2009 (Arising out of SLP(C) NOs. 5332-34 of 2008)

Raj Kishore Pandey                                                   ……..  Appellant

Versus

State of U.P. & Ors.                                                 ……..Respondents

O R D E R

Leave granted.

2) Heard learned counsels for the parties to the lis.

3) This appeal is directed against the orders passed by the High Court

of Judicature at Allahabad in Civil Miscellaneous Writ Petition No. 20552

of  1988  dated  05.08.2003  and  the  orders  passed  on  Restoration

Application  No.  216574  of  2005  dated  02.11.2006.  By  the  impugned

orders,  the  court  has  rejected  the  writ  petition  for  non-prosecution  and

1

further,  has  declined  to  grant  the  relief  sought  in  the  Restoration

Application  only on  the  ground  that  the  reasons  stated  in  the  affidavit

accompanying the application are not  satisfactory.  

4) A  Principal  working  in  the  “Paramhans  Sanskrit  Pathshala”  is

fighting  against  the  mighty Management  for  payment  of  his  salary and

other allowances right from the year 1988.  Since all his efforts to pursue

the Management to distribute the arrears of salary and the current salary

due to him, he was constrained to approach the court, inter alia, requesting

the  court  to  issue  a  writ  in  the  nature  of  mandamus,  commanding  the

respondents to release the entire arrears of salary to which he is entitled to

and further,  to  continue  to  pay his  salary  and  other  allowances  as  and

when the same became due to him.  

5) Respondents  have  filed  their  counter  affidavits.   Pleadings  are

complete.  In  the  interregnum,  several  petitions/applications  are  filed

before the High Court by both the parties.  The appellant has succeeded in

all those interlocutory matters.  

2

6) When  the  matter  was  posted  before  the  Court  on  05.08.2003,

unfortunately for the appellant, his lawyers could not be present before the

court,  and,  therefore,  the  court  has  rejected  the  writ  petition  for  non-

prosecution on the ground that  though, one of the learned counsel  Shri

R.M.  Saggi  has  sent  his  illness  slip,  the  other  counsel,  whose  name

appears in the cause list, was not present before the court.   

7) The  appellant  coming  to  know  about  the  dismissal  of  the  writ

petition for non-prosecution, had filed Restoration Application, bringing

to the notice of the court that he had engaged the services of Shri R.M.

Saggi and Shri S.P. Srivastava, learned advocates, to prosecute the writ

petition.  Shri Saggi was unwell on the date when the writ petition was

posted  for  hearing  and,  therefore,  he  had  sent  his  illness  slip  and  had

requested the court to accommodate him on account of illness and further,

Shri S.P. Srivastava, whose name also appeared in the cause list had been

elevated to the bench of the High Court and, therefore, could not appear as

the counsel for the appellant.  

3

8) The  explanation  offered  according  to  the  learned  Judges  is  not

satisfactory   and,  therefore,  have  rejected  the  Restoration  Application.

Aggrieved by these two orders, the appellant is before us in this appeal.  

9) In our view, the approach of the learned Judges, to say the least is

hyper technical.   Admittedly, the appellant  had engaged the services of

Shri S.P. Srivastava and Shri R.M. Saggi.  Shri Srivastava is elevated to

the bench and, therefore, he could not appear as a counsel for the appellant

though his name was shown in the cause list.  The other learned counsel

was  suffering  from physical  ailment.   Admittedly,  he  had  sent  “illness

slip”  with  the  request  for  adjournment.   When  these  factual  assertions

were not in dispute, in our opinion, court should have allowed the prayer

made in the Restoration Application and should have heard the case on

merits which was pending from last two decades.  

10) It is true that the appellant has to take necessary steps to prosecute

the  petition  by  following  up  action  after  filing  the  writ  petition.   The

appellant had engaged the services of two learned counsels.  Unfortunately

for  him,  one  was  elevated  to  the bench  and other  was  suffering  with

4

physical ailment.  All this information was forthcoming in the application

filed for restoration.   

The High Court has not appreciated these facts.  In our opinion, whether

the applicant has made out sufficient cause or not, in the application filed,

the  court is required to look at all the facts pleaded in the application.  No

doubt,  the  consideration  of  the  existence  of  sufficient  cause  is  the

discretionary power with the court, but such discretion has to be exercised

on sound principles and not on mere technicalities.  The approach of the

court in such matters should be to advance the cause of justice and not the

cause  of  technicalities.  A case as  far  as  possible  should be decided on

merits and the party should not be deprived to get the case examined on

the merits.  

11) In view of above, in our opinion, we cannot sustain the impugned

orders passed by the High Court, and therefore, the  same requires  to be

set aside and the writ petition requires to be restored.

12) Accordingly, we  set aside the impugned orders. We restore the writ

petition  on the  file  of  the High Court.   We request  the  High Court  to

consider the writ petition on merits as expeditiously as possible  at   any

5

rate  within an outer limit of six months from the date of receipt of copy of

this order, after issuing notice to all the parties concerned.  

13) The appeals are disposed of accordingly.  No order as to costs.   

                                                                                      …………………………………J.                                                                                        [ TARUN CHATTERJEE ]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ] New Delhi, January 27, 2009.

6