JUDGMENT N.K. Mehrotra, J.
1. Heard learned counsel for the petitioners and learned Standing Counsel on behalf of the opposite parties.
2. The petitioners are holders of Regular Stage Carriage Permits for the route known as Muzaffar Nagar-Budhana-Kandala-Issopurteet and allied route. They are plying their vehicles on the basis of the permits. Under the direction of the State Transport Tribunal dated 8.12.1992 their applications for renewal of permits were kept pending for a long period. On 28.8.2002 the said applications were considered by the Regional Transport Authority, Saharanpur. The petitioners along with sixtynine permit holders moved the representations before the concerned authority for getting the renewal applications decided. On 19.4.2003 the Assistant Regional Transport Officer, Muzaffar Nagar directed the petitioners to stop plying on the ground that the Regional Transport Authority had refused to renew their permits. The petitioners came to know about the rejection of the renewal applications on 19.4.2003. The order was passed on 28.2.2002. The petitioners preferred the appeals against the said order before the opposite party No. 1 which were registered as Appeal Nos. 182 of 2003, 181 of 2003, 180 of 2003, 177 of 2003 and 179 of 2003. These appeals were filed without depositing the appeal fees as provided under Rule 125 of the U. P. Motor Vehicles Rules, 1998. On 21.5.2003 the appellants were directed to deposit the appeal fees by 2.6.2003. No fee was deposited on 2.6.2003. The appellants moved an application on 4.6.2003 praying for three weeks' time to deposit the appeal fees. On 20.6.2003 this application was taken up and an order was passed granting the time of seven days i.e., up to 27.6.2003. These applications were moved without disclosing any ground for not depositing the fees' along with an appeal. On 27.6.2003 another application was moved for getting time to deposit the fees. Again on 27.6.2003 seven days time was allowed as last opportunity to deposit fees but no fees were deposited. Again on 3.7.2003 an application was moved and again the Tribunal allowed one week's time to deposit appeal fees and even then the appeal fees was not deposited upto 7.7.2003. On 7.7.2003 the Tribunal dismissed the appeal, for non-prosecution.
3. Shri Ashish Saxena, learned counsel for the appellants moved an application for recall of the order dated 7.7.2003 on 23.7.2003. This application is Annexure-9. In this application it was stated that three days after the filing of the appeal on 21.5.2003, there was a marriage of the brother of the advocate, so the learned counsel for the appellants could not inform regarding the deposit of appeal fees to the appellants. It was also alleged that Shri Ashish Saxena, Advocate sent a letter to the appellants on 21.6.2003 but this letter was not received by the appellant. It was also alleged :
"That as the communication between the appellant and his counsel could not be established and as such the appeal fee was not deposited within time on 27.6.2003. The appeal was fixed for 7.7.2003 and on that date the learned counsel sent a request to the Tribunal to take up the case after lunch session but it was not allowed and after the lunch when the learned counsel for the petitioners was coming to the Tribunal he met. an accident."
4. This application for recall (Annexure-9) was rejected separately in different appeals by the impugned order as contained in Annexure-10. The petitioners have challenged the order of dismissal of appeal dated 7.7.2003 (Annexure-8) and the order dated 29.7.2003 rejecting the restoration application (Annexure-10).
5. After hearing, learned counsel for the parties and perusal of the record, I find that the appeal was dismissed for non-prosecution for not depositing the appeal fees even after granting the several opportunities to the appellants. The case of the learned counsel for the petitioners is that their counsel could not inform about depositing of the fees because there could be no communication to the appellants. In modern times the means of communication are so advanced that this statement cannot be believed that the learned counsel for the petitioner could not contact their clients in Muzaffarnagar which is within the State of U. P. Interestingly a ground has been taken that the letter sent by post, could not reach. The writ petition is supported by an affidavit of Shri Ashok Kumar Verma, clerk of Shri Ashish Saxena, advocate who claims himself the pairokar of the petitioners. No petitioner has come forward to file an affidavit in support of the writ petition to say that their counsel did not send any message to them for depositing the appeal fees. On 7.7.2003 the appeals were dismissed for not depositing the appeal fees. Therefore, the ground of the accident of Shri Ashish Saxena, advocate after the lunch session on 7.7.2003 is irrelevant.
6. The restoration application as contained in Annexure-9 was moved by Shri Ashish Saxena, advocate. The legal question is whether this application could be moved by the advocate himself. The procedure for filing the appeal is provided under Rule 91 of U. P. Motor Vehicles Rules, 1998. Sub-rule (3) (i) of Rule 91 and Sub-rule (6) are material to show the procedure in filing the appeal and in filing the application for restoration. These two sub-rules are quoted hereunder :
"Sub-rule 3 (i): The appeal may be filed and argued by the appellant himself or by an agent or an advocate, duly authorised in this behalf. On behalf of the respondent, other than the Transport Authority, the appeal may be argued by the respondent himself by an agent or an advocate duly authorised in this behalf.
Sub-rule (6). The appellate Tribunal may, for sufficient reasons, restore an appeal dismissed in default or for want of prosecution on an application moved by an appellant within fifteen days from the date of the knowledge of the order of dismissal of appeal."
7. The distinguishing feature between the provisions under two sub-rules cited above is that the Legislature has permitted the appeal to be filed either by the appellant or by an agent or an advocate duly authorised in this behalf. While the application for restoration of an appeal has been permitted to be filed by the appellant only and the restoration application can be allowed for sufficient reasons.
8. Admittedly, the restoration application (Annexure-9) was not filed by the appellant and it was not supported by any affidavit. The restoration application cannot be allowed as a matter of routine. The appellant has to establish that there was sufficient reason for moving the application for restoration which can be established by filing convincing evidence. It can be in the form of statement on oath or some documents. The application was not supported by any convincing evidence. Therefore, the learned Tribunal could not convince itself that there was any sufficient reason for not depositing the appeal fees. Moreover, after seeing the various applications for time to deposit the appeal fees, the learned Tribunal observed that in neither of those applications there was any specific reason for not depositing the appeal fees along with the appeals which were filed prior to the marriage of the brother of the advocate of the appellant and if the fees was received by the advocate along with the memo of the appeal there was no reason for not depositing the fees along with the appeal on 21.5.2003.
9. In view of the aforesaid legal provisions, I hold that application for restoration of an appeal (under Section 89 of the Motor Vehicles Act) dismissed in default or for non-prosecution cannot be filed by the advocate of the permit holders. I further hold that the restoration application must be supported by some evidence either oral or documentary to convince the Tribunal that there was sufficient reason for restoration of the appeal dismissed in default or for non-prosecution.
10. The next submission of the learned counsel for the petitioner is that if evidence was required it was the duty of the Tribunal to provide opportunity for producing the evidence. I find that the restoration application was moved on 23.7.2003 and it was decided on 29.7.2003. So it appears that opportunity was given by fixing the date for hearing of an application for recall.
11. Learned counsel for the petitioner has referred a decision of this Court passed in Writ Petition No. 806 (M/S) of 2003, Dinesh Kumar v. State Transport Appellate Tribunal U. P. and Anr. and submitted that the similar order giving the same reason was passed in other appeal and on the restoration application moved by another permit holder Dinesh Kumar. Dinesh Kumar had filed a Writ Petition No. 2806 (M/S) of 2003 in which this Court had allowed the writ petition. The relevant portion of that judgment is quoted as follows :
"........................ The appeal was filed on 21.5.2003 which was admitted and thereafter the time was granted to the petitioner till 2.6.2003 for depositing the appeal fee as required under Rule 125 of U. P. Motor Vehicles Rules, 1998. The petitioner has alleged that on account of the marriage of the brother of the counsel for the petitioner on 24.5.2003 he could not inform to the petitioner for depositing the appeal fees. There was no dispute that twice the time was granted by the Tribunal but the appeal fee was not deposited by the petitioner within the time prescribed. The action of the counsel in prosecuting the appeal before the Tribunal cannot be appreciated by the Court. It is the settled law of the Hon'ble Supreme Court that a client should not suffer on account of the fault of the counsel. The Chairman of the Tribunal has also taken a very technical view in passing the impugned orders.
In the result, the writ petition is allowed .............................."
12. In the earlier writ petition of Dinesh Kumar, attention of this court could not be invited that the appeal was filed on 21.5.2003 while the marriage of the brother of the Advocate was performed on 24.4.2003. Further, 1 find that there was no such admitted fact before this Court that the restoration application was filed by the advocate himself and not the appellant as provided in Sub-rule (6) of Rule 91 of the U. P. Motor Vehicles Rules, 1998. This fact was also not there in the earlier writ petition that the clerk of the advocate has filed an affidavit and neither of the petitioners had filed any affidavit. Since such facts do not find place in the earlier judgment of this Court dated 1.9.2003 passed in the Writ Petition No. 2806 (M/S) of 2003, therefore, the judgment of this Court dated 1.9.2003 will not have the binding effect and since no law has been laid down by this Court in the earlier writ petition and the earlier writ petition was decided on the facts, which cannot be precedent for allowing the writ petition of the other petitioners.
13. It has been next contended by the learned counsel for the petitioners that the client should not suffer on account of the counsel. In the instant case, I find that the appeal was dismissed for not depositing the appeal fees. According to the averments in this writ petition there was no fault of counsel at all. It was the fault of the petitioners themselves who did not deposit the fees along with appeal. The fact of the accident of the advocate was not material because the appeal was dismissed for not depositing the appeal fees even after several opportunities were granted to the appellants. It was not the case here that the appellants have given the fees to the counsel Shri Ashish Saxena, advocate who could not deposit the fees because of the marriage of the brother of the advocate or because of his accident. So far as the restoration application is concerned, petitioners have not filed any application for restoration. In view of my finding above restoration application was not in accordance with Sub-rule (6) of Rule 91 of Motor Vehicles Rules, 1998 and the advocate was not authorised to file that application.
14. This is petition for issuing a writ of certiorari. In Surya Dev Rai v. Ram Chandar Rai and Ors., JT 2003 (6) SC 465, the Hon'ble Supreme Court has laid down the scope of certiorari and the exercise of supervisory jurisdiction. The Hon'ble Supreme Court has held as follows :
"Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate Court is found to have acted (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice."
"Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the fact of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby."
"A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate Court has chosen to take on view the error cannot be called gross or patent."
15. In view of the above, I do not find any patent error in the impugned orders dated 7.7.2003 and 29.7.2003.
16. It has been contended that valuable rights of the petitioners are going to be affected by the impugned order but I am of the view that the petitioners-appellant can avail the remedy in accordance with Rules if they are so advised.
17. In view of the above, the writ petition is dismissed.