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Kailash Nath v. Avtar Singh - FAO-2989-2006 [2006] RD-P&H 1619 (10 March 2006)


FAO No. 2989 of 2006

Date of Decision: 2.03.2006

Parties Name

Kailash Nath



Avtar Singh


Present: Shri P.K.Gupta, Advocate for the appellant Shri Vikas Bahl, Advocate for the respondent JUDGMENT

This order shall dispose of two appeals bearing FAO Nos.2588 and 2589 of 2006 involving common question of law. For facility of reference, facts are being taken from FAO No.2989 of 2006.

Vide order dated 22.4.2004, election petition filed by the appellant was dismissed for non-prosecution. Immediately within 15 days thereafter, he moved an application, to recall that order. Application was also dismissed in default on 22.1.2004. He thereafter, again by moving an application, made a request to recall those orders. His application was again dismissed vide order dated 22.11.2004. It is apparent from the record that it was specific case of the applicant that on the date fixed i.e. 22.11.2004 he could not appear in court as he has noted a wrong date. His counsel also failed to appear. Once the appellant has engaged a counsel, he could FAO No. 2989 of 2006 - 2 -

reasonably expect that his counsel will represent him before the courts below. For any default committed by the counsel, parties are not supposed to suffer. Otherwise also this Court feels that rules and procedure are handmaid of justice.

Their Lordships of Supreme Court in Sardar Amarjit Singh Kalra (dead) by L.Rs. and others v. Parmod Gupta (Smt.) dead) by L.Rs.

And others (2003) 3 S.C.C. 272, in para 26 of the judgment had opined as under:-

"Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice."

View extracted above, was reiterated by their Lordships of Supreme Court in N.Balajit v. Virendra Singh and others, (2004) 8 Supreme Court Cases 312, wherein after noting ratio of the judgment, referred to above, in para 10 of the judgment, it was observed that the procedure would not be used to discourage the substantial and effective justice but would be so construed as to advance the cause of justice.

In view of facts of this case and ratio of judgments, referred to above this appeal is allowed. Orders under challenge, are set aside and the election petition stands restored to its original number. It is further directed that the appellant be granted three opportunities within a span of 4 months to complete his evidence, thereafter similar number of opportunities be granted to the respondent. It is further made clear that if appellant failed to FAO No. 2989 of 2006 - 3 -

avail the opportunities provided by this Court, as directed above, this appeal shall be deemed to have been dismissed. Order passed is subject to payment of Rs.4,000/- as costs, to be paid by the appellant to respondent No.1 before the Courts below on the next date of hearing.

Parties are directed to appear before the Tribunal on 27.3.2006.

Tribunal then fix the date to record evidence of the appellant.

March 02, 2006 ( Jasbir Singh )

gk Judge


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