Judgment:
Guman Mal Lodha, J.
1. This revision petition is directed against the order rejecting the restoration application of the restoration application. The matter relates to reference under Land Acquisition Act. On 6th January, 1979 when the reference proceedings were to be taken, the case was dismissed in default, as no one appeared. An application for restoration was submitted on 6th January, 1979 and was fixed for hearing on 19th May, 1979. As ill-luck would have it the earlier history was repeated on 19th May, 1979 again.
2. On the same day on 19th May, 1979, the petitioner filed an application for restoration of the restoration application mentioning that when the case was called he went to get or call his counsel Shri H.C. Dhandhia and when he came back he found that the case has been dismissed in default. The petitioner filed an affidavit along with this application for restoration. The non-petitioner chose not to file counter affidavit or reply but even then the Chief Judicial Magistrate, Jaipur, dismissed the restoration application on the ground that affidavit of Advocate Shri H.C. Dhandhia was not filed. It was pointed out that sufficient cause was not shown for absence of counsel and party.
3. Having heard learned Counsel for the parties, I am of the opinion that this impugned order is in clear contravention of the decision of this court in Bhanwar Lal v. Bhanwar Lal 1951) ILR 1 in which this court has held that if for absence party can show sufficient cause either counsel or party then the restoration should be made. In other words, showing of sufficient case for absence of both counsel and party is not necessary.
4. In my opinion, in insisting or showing sufficient cause for non-appearance of both counsel and client, the lower court has committed serious error of jurisdiction. Moreover when the affidavit of the party was filed, which was not controverted by the other party, the lower court could not have insisted upon the filing of affidavit of the counsel.
5. Mr. Mehta, submitted that according to the decision of Lala Bal Mukand v. Lajwanti and Ors. AIR 1975 SC 1089 finding regarding absence of sufficient cause is based on discretion & once the discretion is exercised one way or the other the High Court would not interfere even in second appeal. There cannot be any doubt or debate about this proposition of law. However, in the instant case the broad glaring facts that the application for restoration of the application for restoration was filed on the same day and the party mentioned in details the reasons for absence of counsel and himself and that those reason have not been controverted by counter affidavit or written reply have not been considered by the trial court. If those would have been considered and rejected for any reason what so ever then it could have been said that discretion once exercised should not be interfered with.
6. In my opinion, by not considering these facts which are fundamental basic and material and which are unrebutted in absence of counter affidavit, the trial court refused to exercise jurisdiction and acted with material illegality as it was its duty to apply mind and decide one way or the other.
7. Rejection of the application on the ground of absence of affidavit of counsel shows that the approach of the court was found on ignorance about the legal position. More so, as a court of Chief Judicial Magistrate he was bound to follow the principles laid down in Bhanwar Lal v. Bhanwar Lal (supra) judgment of this court.
8. Consequently, the restoration application for restoration of restoration application is accepted. The acceptance of this revision would now result in remand of the case to the lower court for a consideration of the first restoration application on merits which has been restored by this order. The parties would bear their own costs.