RAM KUMAR GUPTA AND ORS. versus HAR PRASAD AND ANR.

Citation: [2009] 15 S.C.R. 1005 · Decided: 18-11-2009 · Supreme Court of India · Bench: TARUN CHATTERJEE · Disposal: Case Partly allowed
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Judgment (excerpt)

[2009] 15 (ADDL.) S.C.R. 1005 
RAM KUMAR GUPTA AND ORS. 
v. 
HAR PRASAD AND ANR. 
(Civil Appeal No. 7648-7649 of 2009) 
NOVEMBER 18, 2009 
[TARUN CHATTERJEE AND R.M. LODHA, JJ.] 
A 
B 
Constitution of India, 1950: Article 226 - Writ petition -
Dismissed for non-prosecution - Application for restoration 
also rejected for non-prosecution - Second application for 
restoration dismissed on the ground of delay and /aches -
C 
Appeal by writ petitioners on the ground that counsel appointed 
by them was designated as Additional Advocate General of 
State and therefore could not appear at the time of hearing of 
writ petition as also restoration of writ petiton Held: Party should 
not suffer merely because his counsel committed default- Writ D 
petition restored to its original file and opportunity granted to 
contest the case on merits. 
Rafiq and Anr. vs. Munshi/a/ and Anr. (1981) 2 SCC 788, 
relied on. 
Case law reference : 
(1981) 2 sec 788 
relied on 
Para 3 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
7648-7649 of 2009. 
From the Judgment & Order dated 28.12.2007 of the High 
Court of Uttrakhand at Nainital in Writ Petition Misc. Single No. 
7361 of 2001 and final Order dated 03.10.2008 in CLMA No. 
6551 of 2008 and MCC No. 1153 of 2008 respectively. 
Dinesh Kumar Garg, N.K. Biju, for the Appellants. 
The Judgment of the Court was delivered by 
1005 
E 
F 
G 
H 
1006 SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R. 
A 
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 
B 
CLMA No. 6551of2008 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. 
c 
3. The facts of the case are as follows: 
Th'e deceased mother of the appellants Smt. lJevki Devi 
was dispossessed from her shop on account of deceptive acts 
of her M~nager, namely, Pooranlal Shah who was engaged by 
D 
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 
E 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 
F 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 dated 5th of March, 1982 passed 
by the First Additional District Judge, Nainital. The said writ 
G 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.7361of2001. An 
application for substitution of the deceased Smt. Devika Devi 
H was filed which was allowed by an order dated 17th of December, 
RAM KUMAR GUPTA AND ORS. v. HAR PRASAD 1007 
AND ANR. [TARUN CHATIERJEE, J.] 
2007. The appellants were thus substituted in place of the 
A 
~ 
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 
-f 
of deceased respondent Pooranlal Shah - Manager was also 
allowed by the High Court. However, by an order dated 28th of 
B 
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 c 
restoration was listed for hearing i.e. on 26th of March, 2008, 
the said
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