Barkat Ali Zaidi, J. - (1.) A twenty-eight years old Second Appeal was dismissed for default, is sought to be resurrected by this restoration applica tion, which is accompanied by an application for condonation of delay.
(2.) THE dispute is between a tenant and landlord and the decree is for evic tion of the tenant who seeks the revival of the appeal. Sri R.S. Misra, Counsel for the applicant and Sri Arjun Singhal, Counsel for the opposite parties have been heard. The Counsel for the applicant-tenant has referred to the case of Rafiq and another v. Munshi Lal and another, AIR 1981 SC 1400 wherein the following observations were made by the Supreme Court. "The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their Advocates, the obligation of the parties is to select his Advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participle in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the Advocate that the latter ap pears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tenancy, would it not repute. What is the fault of the party who having done everything in his, power and expected of him would suffer because of the default of his Advocate. If we reject this ap peal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. 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. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay or dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the Advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi."
(3.) ON the basis of the aforesaid observations, the Counsel for the appli cant argued, that, since the Counsel for the applicant defaulted, he should not be penalised as has been mentioned by the Supreme Court. All cases, however, are not a like and have different features and characteristics. It is not appro priate to apply a single formula in a straight-jacket to all cases, irrespective of divergence in facts and circumstances. It will be noticed that in the present case, the appeal was dismissed on 12.5.2006. The application for restoration was made on 24.10.2008. This will show that the application for restoration was given 3 year and 5 months after dismissal of the appeal, and that clearly shows latches on the part of the applicant, because, he could have and should have found out, about his appeal much earlier. The university accepted axiom that 'Delay defeats Equity' should operate, and the applicant should be deemed disentitled to the relief claimed. It will also be noticed that subsequent to the dismissal of the appeal, after the execution proceedings had commenced, the applicant tried to evade service as will appear from the counter affidavit filed, and ultimately service was effected by 'publication'.;