Decided on March 04,1999

PRIYA Appellant


T.S.DOABIA, J. - (1.) FAILURE on the part of the counsel to appear when the cause was called led to the dismissal in default of a Civil Miscellaneous Appeal No. 165 -A/93. This was dismissed on 6th Dec., 1996. An application was filed seeking its restoration. This was filed on 27th Jan., 1997. There was delay in the matter of filing this application. The non -appearance of the counsel was because of the fact that the counsel was to attend marriage of his nephew. This was fixed on 6th Dec., 1996. The marriage ceremony was to continue till 8th Dec., 1996. Above cause was said to be a sufficient cause for getting the appeal restored to its original number. There was delay in the matter of filing application seeking restoration. Some facts and figures were pleaded on the record to explain this delay. Explanation given was that the counsel was under the belief that after excluding the period which was spent for getting the certified copy, the application would be within time. It was under this bonafide impression on the part of counsel the application is said to have been filed belatedly.
(2.) APPLICATION was opposed. It was stated that even though the copy was ready on 8th Jan., 1997 no effort was made to obtain the same in time. It was obtained on 4th Jan., 1997. In these circumstances it is pleaded that the appellantâ„¢s counsel cannot take advantage of his own negligence. The above reasoning found favour with a learned Single Judge of this court. The delay was not condoned. This led to the application seeking restoration to be dismissed.
(3.) WE are of the opinion that on account of alleged negligence of a counsel, a litigant should not suffer See ËœRafiq and another Vs. Munshilal and anotherâ„¢, AIR 1981 SC 1400. The Supreme Court of India has in categoric terms laid down that if a counsel is in any manner remiss then that should not be made a ground to penalise a litigant. What was said is being reproduced below: - The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.  As such the appellant should not suffer on account of lapse of the counsel.;

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