RAIS AHMAD versus STATE OF U.P. AND ORS.

Citation: [1999] SUPP. 1 S.C.R. 435 · Decided: 13-08-1999 · Supreme Court of India · Bench: S. SAGHIR AHMAD · Disposal: Appeal(s) allowed

Judgment (excerpt)

RAIS AHMAD 
A 
v. 
STATE OF U.P. AND ORS. 
AUGUST 13, 1999 
[S. SAGHIR AHMAD AND D.P. WADHWA, JJ.] 
B 
Constitution of India, 1950-Article 225-Allahabad High Court-
Rules of Court 1952-Chapter VI Rule 15-Writ Petition filed by appellant-
Dismissed on merits in the absence of appellant's counsel-Leave of absence 
already granted by Chief Justice-Illness slip sent by counsel not brought C 
to the knowledge of Court-Whether the dismissal of writ petition on merits 
correct-Held, No. 
Appellant's Counsel had sought for adjournment of his cases and sent 
an illness slip to the High Court. The Chief Justice had granted the application D 
of the Appellant's Counsel for adjournment on the ground of his illness for 
the period upto 23rd April, 1996. 
A writ petition filed by the Appellant before the Court however was 
dismissed on 24th April, 1996 on merits in the absence of his Counsel in 
spite of an illness slip. An application for setting aside the order was E 
dismissed by the High Court. 
The High Court rejected the application on the ground that the 'illness 
slip' sent by the Appellant's Counsel was not brought to the notice of the 
Court. 
In appeal to this Court, the Appellant contended that ifthe mistake was 
that of the office of the court in not bringing to the notice of the court the 
illness slip sent by the Appellant's Counsel, the Appellant cannot be made 
to suffer and in that situation the High Court would retain its jurisdiction 
F 
to recall an erroneous order under its inherent powers, that the High Court 
while considering the writ petition under Article 226 of the Constitution G 
exercised constitutional powers and that therefore even if merits of the writ 
petition were considered in the absence of the Counsel for the Appellant the 
judgment passed on that basis can still be recalled. 
The Respondent contended that the facility of adjournment available to H 
435 
436 
SUPREME COURT REPORTS [1999] SUPP. I S.C.R. 
A the Counsel on the ground of "illness slip" is a facility which has been. 
abused more often than not so much so that interim orders once obtained 
have been .continued for long time and that the facility of adjournment on this 
basis should be abolished so that the litigant whose Counsel has fallen ill, 
may make alternative arrangement and the hearing of the case may not be 
B. affected. 
Allowing the appeal, this Court 
HELD : 1. Since leave of absence to the Counsel had already been 
grantecI by the Chief Justice upto 23rd April 1~96, it is quite understandable. 
C . that on 24th April 1996 when the case· was Hsted, the Counsel was still 
unwell and could not come to the c.ourt and, therefore, could not conduct the 
case which, in keeping with the high and noble tradition, should have been 
adjourned on the "illness slip" of that Counsel. This having not been done 
has r~sulted in serious miscarriage of justice. (441-B-C) 
D 
l. Litigants in the country are generally poor (agriculturists) ·coming 
from rural areas or they are Government servants or workmen in an industrial 
establishment or the like and they cannot afford to manage the luxury of 
engaging another Counsel. This privilege is available only to the Central or 
State Governments who not only have Standing Counsel but also standby 
Counsel. The contention of the Respondent is therefore rejected .as absurd 
E and inappropriate. (440-G-H) 
F 
G 
3. The"judgment and order of the High Court is set aside and the case 
is remand~d to the High Court for a fresh decision of the writ petition in 
accordance with law after giving an opportunity of hearing to the Counsel 
for the parties. [441-D-EJ 
· 
CIVIL APPEL LA TE JURISDICTION: Civii Appeal No. 4446 of 1999. 
From the Judgment and Order dated 27.8.97 of the Allahabad High Court 
in C.M.A. No. 32328 of 1996. 
W.A. Nonnani and S.K. Mishra for the Appellant. 
R.C. Verma, Kamlendra Misra, Chatanya Siddharth and R.B. Misra for 
the Respondents. 
· .H 
The Judgment of the Court was delivered by 
RAIS AHMAD v. STATE [S. SAGHIR AHMAD, J.] 
S. SAGHIR AHMAD, J. Leave granted. 
• 
437 
A 
Appellant's writ petition in the Allahabad High Court which was listed 
on 24.4.1996 was disposed of in the absence of his counsel and was dismissed 
on merits. An application filed thereafter for setting aside the order dated 
24.4.1996 was dismissed on 27 .8.1997. It is against this order that the present 
appeal has been filed. 
B 
The writ petition in which the above order was passed was listed before 
t

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