Leave granted.
The suit for declaration and injunction filed by the appellant was
dismissed in default on the ground of non-appearance of his advocate. The petition
for restoration was dismissed by the Trial Court on 14.10.2008. That order was
confirmed by the Additional District Judge who dismissed the appeal preferred by the
petitioner and the High Court dismissed the revision filed against appellate order.
Hence, this appeal by special leave.
Having heard learned counsel for the parties and perused the records, we
are convinced that in the facts and circumstances of the present case non-
appearance of the
advocate of the petitioner cannot be treated as intentional and
the Trial Court should have restored the suit to its original file. The learned
Additional District Judge and the High
Court confirmed the order of dismissal of restoration application without properly
appreciating the fact that the petitioner was not to be blamed for non-appearance of
his advocate. Therefore, the impugned orders are liable to be set aside.
Accordingly, the appeal is allowed, impugned orders are set aside and the
suit is restored to the file of the Trial Court which shall now decide the same in
accordance with law.
[G.S. SINGHVI] New Delhi, January 19, 2009.