SUPREME COURT OF INDIA

Before:- G.T. Nanavati and S.N. Phukan, JJ.

Civil Appeal No. 7632 of 1999 (Arising out of Special Leave Petition (C) No. 4196 of 1999). D/d. 15.12.1999.

Narmada Nursery K.G. and Junior School, M.P. - Petitioner

Versus

Regional Provident Fund Commissioner and another - Respondents

Constitution of India, 1950 Article 32 Writ Restoration application - Rejected - Validity - Appellant state that learned counsel who was appearing in the Writ Petition could not remain present before the High Court at the relevant time as he was busy in some other court - Held, High Court without considering all aspect dismissed the restoration application - Court observed this was a fit case in which on payment of cost, the application for restoration ought to have granted - Appeal allowed with Cost and order of High Court set aside.

[Paras 5 to 7]

ORDER

1. Though both the respondents have been served, they have not thought it fit to appear and oppose this proceeding.

2. Leave granted.

3. Heard learned counsel for the appellant.

4. The Writ Petition No. 4172 of 1997 filed by the appellant before the Madhya Pradesh High Court was dismissed for default on 3.2.1998. The appellant, thereafter, filed an application for restoration of the said Writ Petition. That application was rejected as the Court was of the opinion that there was no good ground for restoration of the Writ Petition. Aggrieved by that order the appellant filed Letters Patent Appeal before that High Court but that was also dismissed on the ground that the order passed by the learned Single Judge was quite proper and did not call for any interference.

5. What is contended by the learned counsel for the appellant is that the learned counsel who was appearing in the Writ Petition could not remain present before the High Court at the relevant time as he was busy in some other Court. It was no doubt the duty of the learned counsel either to made an appropriate arrangement for conducting the matter in the High Court when it was likely to be called out or to return the brief when he was not in a position to attend the Court. However, in order to see that the interest of the appellant is also not adversely affected because of the negligence of the lawyer, the High Court should have considered if the Writ Petition could be restored on the condition that appellant paid appropriate amount of cost to the respondents.

6. Without considering this aspect, the High Court dismissed the restoration application. The Division Bench of the High Court also did not consider all the aspects and dismissed the Letters Patent Appeal. In our opinion this was a fit case in which on payment of cost, the application for restoration ought to have been granted. We, therefore, allow this appeal, set aside the order passed in Letters Patent Appeal No. 167 of 1998 and also the order of the learned Single Judge in M.C.C. No. 114 of 1998.

7. The Writ Petition No. 4172 of 1998 is ordered to be restored to file on payment of cost of Rs. 2500/- . The amount deposited by the appellant in this Court shall be transferred to the Madhya Pradesh High Court and the same is ordered to be paid to respondents.

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