Himachal Pradesh High Court
Karam Chand vs State Of H.P. & Ors on 26 June, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
LPA No. 28/2022
Decided on : 26.6.2023
Karam Chand .....Appellant
Versus
.
State of H.P. & ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting?1No
For the Appellant: Mr. Arun Sehgal, Advocate.
For the Respondents: Mr. Anup Rattan, A.G. with Ms.
Sharmila Patial, Addl. A.G. & Mr.
Rajat Chauhan, Law Officer, for
respondent-State.
_____________________________________________________________________
Justice Tarlok Singh Chauhan, Judge (oral)
Aggrieved by the order passed by the learned writ Court, the petitioner/appellant has filed the instant appeal.
2 The writ petition filed by the appellant was on the dockets of this court since the year 2008 and during the pendency of the same, an application being CMP No. 2275/2017 came to be filed by Mr. Naresh Kaul, Advocate, who was the then representing the appellant, wherein it was mentioned that despite written communication addressed to the appellant, he was not coming forth to impart instructions to him and accordingly, a prayer was made for permitting the counsel to withdraw his power of attorney. The application was allowed in terms of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 30/06/2023 20:31:18 :::CIS 2prayer contained therein on 6.4.2017 and for want of appearance, the writ petition was dismissed in default.
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3 It was after about two years that the appellant then filed an application this time through Mr. Arun Sehgal & Mr. Narender Singh Thakur, Advocates, being CMP No. 2794/2019 for restoration of the writ petition by recalling the order dated 6.4.2017. Along with this application, another application being CMP(M) No. 373/2019 was filed for condonation of delay in filing the application. It was averred in the application that the counsel, who had been earlier conducting the case on behalf of the appellant had imparted certain instructions to the appellant, but as the appellant belongs to downtrodden and poor strata of the society, he was unable to understand intricacies of law and thus could not contact and visit the office of his counsel so as to impart necessary instructions. Further, it was contended that the factum of the dismissal of the writ petition on 6.4.2017 came to the notice of the appellant only on 18.3.2019 when he contacted his neighbour, who happens to be an Advocate practicing in District Kangra, to know about fate of his case, who, in turn, visited the website of the Court and apprised about dismissal of the petition in default.
::: Downloaded on - 30/06/2023 20:31:18 :::CIS 34 Lastly, it was averred that the appellant after coming to know about the dismissal order immediately contacted his .
counsel and filed aforesaid two applications.
5 The learned writ Court dismissed both applications on the ground that there is lack of bona fide on the part of the appellant and the entire story as put forth was nothing, but an afterthought.
6. We have heard the learned counsel for the parties and have also gone through the material placed on record.
7 It would be noticed that in the instant appeal, those very grounds, which have been otherwise dealt with the learned writ Court, have been raised herein without there being single averment as to how the order passed by the learned writ Court in any manner is incorrect or perverse.
8 It shall be apt to reproduce two grounds inter alia taken in the appeal, which read as under:-
(a). That while passing the impugned judgment, the Hon'ble Single Judge has not properly appreciated the facts coming on record as well as law. It is respectfully submitted that the Hon'ble Single Judge has dealt with the matter in a hurried manner. Had the Hon'ble Single Judge appreciated the actual facts and circumstances of the case on record as well as the law in right perspective, the same would not have resulted into passing the impugned order. Hence, the ::: Downloaded on - 30/06/2023 20:31:18 :::CIS 4 impugned order having been passed in slip shod manner is liable to be set aside in the interest of justice.
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(b). That it is respectfully submitted that the earlier counsel who has withdrawn the Power of Attorney on 06.04.2017, then this Hon'ble Court has not issued any notice to the appellant and this Hon'ble Court has dismissed the writ petition on the same day without issuing any notice and the appellant had no knowledge with respect to the listing of the case and the factum of the dismissal of the petition for non-prosecution on 06.04.2017 came to his notice only on 08.03.2019 when he wanted to know the fate of his case and a neighbour of his, who happens to be an Advocate practicing in District Kangra, informed him that internet is reflecting dismissal of his petition as on 06.04.2017. It is further mentioned in the application that thereafter the appellant immediately contacted the counsel, visited Shimla, applied for the copy of order dated 06.04.2017 and filed the application. The Hon'ble Single Judge did not find favour with the true version put forth by the appellant before this Hon'ble Court in the application for restoration as well as application for condonation of delay and by drawing his own assumption and presumption has proceeded to dismiss the same, which has result in manifest injustice to the appellant. Hence, the impugned order deserves to be set aside and the applications filed by the appellant may kindly be allowed so that the writ petition may be heard on merits.
9 Even otherwise, we find no reason to interfere the impugned order as the appellant has not denied the fact that he had in fact received a communication from the counsel ::: Downloaded on - 30/06/2023 20:31:18 :::CIS 5 representing him earlier in the case i.e. Mr. Naresh Kaul, Advocate regarding imparting of certain instructions.
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10 Once that be so, obviously, heavy onus lies upon the appellant to prove that the instructions, as stated to have been imparted in the application filed by the counsel for withdrawal of his power of attorney being CMP No. 2275/2017, were not correct. It shall be apt to reproduce para 5 of the aforesaid application, which reads as under:-
"That the petitioner instead of giving the date of death/death certificate and his legal heirs certificate etc., as mentioned in para 4 has stated that now, after the death of Sh. Gian Singh there is no need to agitate his claim in the Hon'ble High Court, then he was advised by the counsel not to act like this and again directed him to give the particulars of the legal heirs and some expenditure for drafting the application and for process fee etc., but, the petitioner under the influence of some one has directed the counsel for the petitioner not to appear in his case, as he will engage new counsel with the wording that "tu hi koi vakeel thodi rahi gaya, sade bhi bade vakeel hain" aur "sharma horan ne vakeel kar leya maire case vich"
11 Apart from other things, it would be noticed that the findings as recorded by the learned writ court are pure findings of fact, which ordinarily would not be interfered in letters patent ::: Downloaded on - 30/06/2023 20:31:18 :::CIS 6 appeal unless such findings are perverse and contrary to the record, which is not a position in the case in hand.
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12 In view of aforesaid discussions, we find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application(s), if any.
(Tarlok Singh Chauhan)
Judge
(Satyen Vaidya)
26.6.2023
r Judge
(pankaj)
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