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MCC-2754-2019

Sohanlalarya v. State of M.P.

2019 SCC OnLine MP 3268

In the High Court of Madhya Pradesh†

(BEFORE VISHAL MISHRA, J.)

Sohanlalarya
v.
State of Madhya Pradesh
MCC-2754-2019
Decided on November 8, 2019
Advocates who appeared in this case :
Shri Arjun Parihar, learned counsel for the petitioner.
Shri Purussotam Panday, learned Public Prosecutor for the respondents/State.
The Judgment of the Court was delivered by
VISHAL MISHRA, J.:— Present MCC has been filed by the petitioner for restoration of
the W.P. No. 18181/2019 which was dismissed in non compliance of peremptory order
dated 03.09.2019.
2. Learned counsel for the applicant further submits that due to inadvertent, default
could not be cured within stipulated time as has been granted by this Court, as such
the petition was dismissed in non compliance of the peremptory order. It is further
submitted that he has paid process fee on 22.10.2019. It is further submitted that
due to mistake of the counsel litigant should not be made to suffer.
3. He has relied upon the judgment passed by Supreme Court in the case of M.K.
Prasad v. P. Armugam, reported in, (2001) 6 SCC 176 and has argued that it is a
settled law that for fault of counsel, a party should not be made to suffer.
4. Heard learned counsel for the parties and perused the record.
5. It is settled law that the Hon'ble Supreme Court in the case of Rafiq v. Munshilal
reported as AIR 1981 SC 1400 wherein, the Hon'ble Court has held as under:
“Where an appeal filed by the appellant was disposed of in absence of his
counsel, so also his application for recall of order of dismissal was rejected by the
High Court, the Supreme Court in appeal set aside both the orders of dismissal on
ground that a party who, as per the present adversary legal system, has selected
his advocate, briefed him and paid him fee can remain supremely confident that his
lawyer will look after his interest and such a innocent party who has done
everything in his power and expected of him, should not suffer for the inaction,
deliberate omission or misdemeanor of his counsel”.
6. The Hon'ble Supreme Court in the case of M.K. Prasad v. P. Armugam, reported
in, (2001) 6 SCC 176 which reads as under;
“10. In the instant case, the appellant tried to explain the delay in filing the
application for setting aside the ex parte decree as is evident from his application
filed under Section 5 of the Limitation Act accompanied by his own affidavit. Even
though the appellant appears not to be as vigilant as he ought to have been, yet his
conduct does not, on the whole, warrant to castigate him as an irresponsible
litigant. He should have been more vigilant but his failure to adopt such extra
vigilance should not have been made a ground for ousting him from the litigation
with respect to the property, concededly to be valuable. While deciding the
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application for setting aside the ex parte decree, the court should have kept in mind
the judgment impugned, the extent of the property involved and the stake of the
parties. We are of the opinion that the inconvenience caused to the respondent for
the delay on account of the appellant being absent from the court in this case can
be compensated by awarding appropriate and exemplary costs. In the interests of
justice and under the peculiar circumstances of the case, we set aside the order
impugned and condone the delay in filing the application for setting aside ex parte
decree. To avoid further delay, we have examined the merits of the main application
and feel that sufficient grounds exists for setting aside the ex parte decree as well.”
7. Considering the aforesaid judgment passed by Hon'ble Supreme Court wherein,
it is categorically held that for the fault of counsel, a party should not be made to
suffer. Therefore, this court deems it fit to allow the MCC.
8. Therefore, the Misc. Civil Case is allowed subject to payment of cost of Rs. 1000/
- to be deposited in the Legal Aid Services within seven working days.
9. W.P. No. 18181/2019 is restored to it's original number.
10. MCC stands allowed as indicated herein above.
11. A copy of this order be kept in the record of W.P. No. 18181/2019.
12. C.C. as per rules.
———
† Gwalior Bench
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