REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.7648-7649 OF 2009 [Arising out of SLP [C] Nos. 938-939 OF 2009

Ram Kumar Gupta & Ors. …Appellants

Versus

Har Prasad & Anr…….…..…………………………….Respondents

J U D G M E N T

TARUN CHATTERJEE, J.

1. Leave granted.

2. These appeals  are filed against the order dated 28th of  

December, 2007 passed in Writ Petition (Misc.) Single No.  

7361 of 2001 and the order dated 3rd of October, 2008  

passed in CLMA No. 6551 of 2008 and MCC No. 1153 of  

2008  respectively  of  the  High  Court  of  Uttarakhand,  

whereby the High Court had dismissed the Writ Petition  

(Misc.)Single  No.7361 of  2001 for  non prosecution and  

rejected the application for restoration of the writ petition  

on condonation of delay in filing the same.   

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3. The facts of the case are as follows:  

The deceased mother of the appellants Smt. Devki Devi was  

dispossessed from her shop on account of deceptive acts of her  

Manager, namely, Pooranlal Shah who was engaged by her to  

run the business of confectionery (Halwai) after the death of  

her  father.  The  said  Manager  got  an  ex  parte  order  for  

declaring vacancy under Section 16(1) of U.P.Urban Buildings  

(Regulation of Letting, Rent and Eviction) Act, 1972 (Act No.13  

of 1972) and thereafter an ex-parte order for allotment of shop  

in question in his favour. The said order was challenged by the  

appellants  before  the  High  Court  of  Allahabad  and  by  its  

judgment and order dated 9th of  January,  1980, the matter  

was  remitted  back  to  the  First  Additional  District  Judge,  

Nainital to decide it afresh. After remand, the First Additional  

District Judge, Nainital by his order dated 5th of March, 1982,  

again upheld the order of declaring vacancy and allotment in  

favour  of  the  said  Manager.  On  25th of  May,  1982,  the  

appellants filed a Civil Misc. Writ Petition No. 5997(A)/1982 in  

the High Court of Allahabad challenging the aforesaid order  

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dated  5th of  March,  1982  passed  by  the  First  Additional  

District Judge, Nainital. The said writ petition was admitted by  

the High Court of Allahabad. Subsequently, on the creation of  

State of Uttarakhand, the said writ petition was transferred to  

the  High  Court  of  Uttarakhand  at  Nainital  and  was  re-

numbered  as  W.P.(S)No.7361  of  2001.   An  application  for  

substitution of the deceased Smt. Devika Devi was filed which  

was allowed by an order dated 17th of December, 2007. The  

appellants were thus substituted in place of the deceased Smt.  

Devki Devi in the pending writ petition.  By a separate order of  

the same date, another application filed by the appellants for  

the substitution of heirs and legal representatives of deceased  

respondent Pooranlal Shah – Manager was also allowed by the  

High  Court.  However,  by  an  order  dated  28th of  December,  

2007,  the  High  Court  dismissed  the  writ  petition  for  non-

prosecution.  For restoration of the writ petition dismissed for  

non-prosecution,  an application  was  filed  by  the  appellants  

through  their  learned  counsel  Shri  Bindesh  Kumar  Gupta.  

Since  Sh.  Gupta  did  not  appear  at  the  time  the  said  

application for restoration was listed for hearing i.e. on 26th of  

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March,  2008,  the  said  application  for  restoration  was  also  

rejected  by  a  learned  Judge  of  the  High  Court  for  non-

prosecution.  Sometime in the month of September, 2008, a  

second application for restoration of the writ petition was filed  

by the appellants saying that since Sh. Gupta was appointed  

as the Additional Advocate General of the State, he could not  

appear when the writ petition was taken up for hearing.  The  

High Court by the order dated 3rd of October, 2008 dismissed  

the second application for restoration on the ground of delay  

and latches without passing a speaking and reasoned order.  

Feeling aggrieved by the order of the High Court rejecting the  

writ  application  for  non-prosecution  and  subsequent  order  

rejecting the application for restoration,  the appellants have  

filed two Special Leave Petitions, which on grant of leave, were  

heard in the presence of the learned counsel for the appellants  

only.   At  this  stage,  it  may  be  mentioned  that  in  spite  of  

repeated services on the respondents, no one had chosen to  

appear before us at the time of hearing of these appeals.

We have heard the learned counsel for the appellants and  

also  examined  the  materials  on  record  including  the  two  

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orders passed by the High Court, one being rejection of the  

writ petition for non-prosecution and the other being the order  

of rejection for restoration of the writ petition. The case that  

was  made  out  by  the  appellants  for  restoration  of  the  writ  

petition was that the learned counsel for the appellants Sh.  

Gupta could not appear before the learned Judge of the High  

Court as at that point of time, he was designated as Additional  

Advocate General of the State and for that reason, it was not  

possible for him to appear at the time of hearing of the writ  

petition as well as for restoration of the writ petition.  Keeping  

this fact in mind and the fact that the appellants could not be  

represented at the time of hearing of the writ petition, we feel it  

appropriate to restore the writ  petition to its  original  file  in  

order to give an opportunity to the appellants to contest the  

same on merits.  As noted hereinabove, for restoration of the  

writ petition dismissed for non-prosecution, an application for  

restoration was filed by the appellants which was rejected only  

on the ground of delay and latches.  But on a perusal and on  

proper examination of the record of this case, we find that no  

delay was caused by the appellants in filing the application for  

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restoration of the writ petition. In any view of the matter, the  

appellants cannot be punished for the lapses even if there was  

any,  as  the  appellants  had  engaged  a  learned  counsel  to  

appear and contest the writ petition. That apart, considering  

the fact that the appellants had been prosecuting the litigation  

since 1982 diligently  and there was no lapse on their part till  

the writ petition was dismissed for non prosecution and also  

considering the  fact  that  a  lawyer  was engaged by them to  

contest  the  matter  in  the  High  Court  who,  however,  

subsequently  was  designated  as  an  Additional  Advocate  

General of the State and, therefore, could not be present at the  

time the writ petition was taken up for hearing, we cannot but  

hold that it would be improper that the appellants should be  

punished for non appearance of the learned counsel for the  

appellants  at  that  time  as  we  are  of  the  view  that  the  

appellants  were  suffering  injustice  merely  because  their  

chosen advocate had defaulted. In Rafiq & Anr. vs. Munshilal  

& Anr. [1981 (2)  SCC 788],  this  Court  has also drawn the  

same  conclusion  while  considering  the  application  for  

restoration of a writ application when the learned counsel for  

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the appellant could not be present at the time of hearing of the  

application.  

In  view  of  our  discussions  made  herein  above,  we  are,  

therefore, of the view that both the orders, namely, the order of  

rejection  of  the  application  for  restoration  as  well  as  the  

application  for  dismissal  of  the  writ  application  for  non  

prosecution are liable to be set aside.  Accordingly, both the  

orders are  set  aside and the writ  petition is  restored to its  

original  file.   However,  considering  the  facts  and  

circumstances and length of the matter being kept pending in  

court, we restore this writ application subject to the condition  

that  the  appellants  shall  deposit  and  pay  a  sum  of  

Rs.10,000/-  as  costs  to  the  respondent  within  two  months  

from the date of filing of a copy of this order in the High Court.  

We make it clear that in the event, the amount of cost, as  

indicated  above,  is  not  deposited  within  the  time  specified  

herein, the appeals shall stand dismissed and the impugned  

orders  shall  stand  affirmed.  In  the  event,  the  cost,  as  

indicated, is deposited within the time specified herein above,  

the High Court is requested to dispose of the writ petition at  

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an early date preferably within three months from the date of  

deposit of the amount by the appellants in the High Court.

The appeals are thus allowed to the extent indicated above.  

There will be no order as to costs.        

………………………..J. [Tarun Chatterjee]

New Delhi; …………………………J. November 18, 2009. [R.M.Lodha]            

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