2009 INSC 0092
                                    SUPREME COURT OF INDIA

                                               Ashutosh Gaur

                                                      Vs.

                                      New Delhi Municipal Council

                                            C.A.No.315 of 2009

                                  (B.N. Agrawal and G.S. Singhvi JJ.)

                                                  19.01.2009

                                                   ORDER

1. Leave granted.

2. 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.

3. Hence, this appeal by special leave.

4. 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.

5. 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.

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