Litigant Should Not Suffer For Counsel's Lapse: Gauhati High Court Restores Appeal Dismissed For Non-Prosecution
The Gauhati High Court has reiterated that a litigant should not suffer due to the negligence of his counsel, while restoring an appeal dismissed for non-prosecution and condoning a delay of 123 days in seeking its restoration.
Justice Pranjal Das observed, “The decision in Solim Manyu Vs. Benglum Manyu, CRP/21(AP)/2025 and N. Balakrishnan Vs. M. Krishnamurty reported in (1998) 7 SCC 123, would not come in the way of this revisional court approaching the matter in a justice-oriented manner, keeping in mind the contentions of the petitioner and the principles laid down in the above discussed judgments.”
The observation came in a civil revision petition filed under Article 227 of the Constitution challenging the judgment passed by the District Judge, Yupia in a Civil (Misc.) Appeal which arose from the order of the Civil Judge (Senior Division), Yupia dismissing the petitioner's application seeking condonation of 123 days' delay and restoration of his first appeal.
The petitioner and the respondent, were husband and wife and had acquired two plots of land at Hollongi under Balijan Circle. They separated in 2010. According to the petitioner, he continued in peaceful possession of the land and obtained Land Possession Certificates in 2018. The respondent later complained before the Additional Deputy Commissioner, Balijan that the certificates had been fraudulently and dishonestly obtained, following which they were recalled and cancelled. The petitioner challenged the cancellation before the High Court.
Meanwhile, on a complaint by the respondent, the Gaun Baura, Hollongi (village headman in Assam) passed an order granting full rights of ownership over the disputed land to her. The petitioner challenged the order in a Civil Appeal. Though the Civil Judge initially stayed the order and directed the parties to maintain status quo, the appeal was dismissed for default after the petitioner's counsel remained absent on three dates.
The petitioner's case was that his counsel had not informed him of the dismissal and that he came to know about it only when the respondent started undertaking activities on the property. He thereafter engaged a new counsel and sought restoration of the appeal.
The High Court noted that the impugned order had also taken into account the previous defaults of appearance of the counsel representing the petitioner.
“Upon perusing the impugned order, it appears that the learned court also took into account the previous default of appearance of the learned counsel representing the present petitioner,” the Court said and also recorded the petitioner's explanation for the non-appearance and the delay.
It further added, “The petitioner has contended that he was unaware of the non-appearance of the learned counsel on the 3 (three) dates and the dismissal of the proceeding for non-prosecution and that he came to know about it only when the respondent started some activities on the concerned property. The petitioner has contended that thereafter, he took steps to engage the new counsel and eventually filed the petition for restoration. The petitioner has also tried to explain the delay in such circumstances.”
The High Court had earlier noted the principle that litigants should not suffer for lapses on the part of their counsel and that sufficient cause for delay must be considered with a justice-oriented approach.
Applying those principles to the petitioner's case, the Court held that the decisions relied upon would not prevent the revisional court from approaching the matter in a justice-oriented manner, keeping in mind the petitioner's contentions and the principles discussed in the judgment.
Accordingly, the High Court set aside the order dismissing the First Appeal, the judgment of the District Judge in Civil (Misc.) Appeal, and the order dismissing the IA. It also condoned the delay of 123 days in filing the restoration application.
The Court stated, “Accordingly, the judgment and order dated 09.08.2024 passed by the learned Civil Judge (Senior Division), Yupia in First Appeal No. 05/2023 and the judgment and order dated 18-05-2026 passed by the Learned District Judge, Yupia in Civil (Misc.) Appeal No. 2 of 2025 and the order dated 04-08-2025 passed by the learned Civil Judge (Senior Division), Yupia dismissing IA No. 7/2025 – are hereby set aside. The delay of 123 days in filing the application for restoration of the appeal is also condoned.”
The first appeal was restored for fresh adjudication by the Civil Judge (Senior Division), Yupia after giving new opportunities to both sides. The petitioner was, however, directed to deposit Rs. 5,000 as costs before the District Legal Services Authority, Papumpare, Yupia. Both parties were directed to appear before the Civil Judge on September 7, 2026.
Case No.: Crl.Petn./101/2026
Case Title: Kabak Bhatt v. Ms Biki Shapiong
LL Citation: 2026 LiveLaw (Gau) 127
Case Number: CRP/48/2026