R.S. Narula, C.J. and Harbans Lal, J. - (1.) THE facts giving rise to this appeal are brief and may first be noticed. Against an award given by the Motor Accident Claims Tribunal, Gurgaon, in 'favour of the Respondents, the Appellant filed an appeal in this Court on September 26, 1969, through Shri Bhopinder Singh Dhillon who was then an Advocate practising in the Court. Mr. Dhillon was elevated to the Bench of this Court on February 6, 1970. No counsel was engaged in the place of Mr Dhillon though another counsel had been associated with him from the very beginning. When the first appeal came up for hearing before C. G. Suri, J. on September 8, 1971, no one appeared either for the Appellant or for any of the Respondents. The learned Judge, therefore, dismissed the appeal in default. Normally such appeals are not of disposed of by this Court within a year or two due to the pendency of heavy arrears Mr. S. N. Tandon, Office Assistant of the Appellant, came to Chandigarh to enquire about the case during the summer vacation of 1973, and came to know about the appeal having been dismissed in default. Appellant almost immediately made application, dated July 6, 1973 (Civil Misc. 4710 of 1973) in this Court on July 12, 1973, for restoration of the First Appeal from Order. Suri, J. before whom the application came up for motion hearing, dismissed it in limine on August 17, 1973, with one word dismissed' without dealing with any of the points that were raised before him. This appeal has been preferred against the aforesaid order of the learned Single Judge, dated August 17, 1973.
(2.) MR . Baldev Singh Jawanda. Learned Counsel for the Appellant, has firstly contended that this appeal is in fact not beyond time as Section 17(1)(c) of the Limitation Act, 1963 (in contra -distinction to the provisions of corresponding Section 18 of the 1908 Act), entitles an Appellant to exclude from the period prescribed for filing an appeal the time that might have been spent due to the mistake of the counsel. He his placed reliance in this connection on the judgment of the Calcutta High Court in Inder Singh Bejwa v. Corporations of Calcutta, AIR 199 Cal. 418. In any case con ends counsel, this is a fit case where the learned Single Judge should have condoned the celiv(sic) in making the application for restoration under Section 5 of the Limitation Act following the consistent view taken by various High Courts that no litigant should be penalised for the fault of this counsel. Though in this case in fact even the counsel was not at fault and according to the decision of a division Bench of this Court in Rama Vanti v. Smt. Bal kaur : (1968)70 PLR 357, it would have been better if the office had sent notice of the actual date of hearing of the appeal to the Appellant as the senior counsel for the Appellant had been elevated to the Bench of this Court. In support of the consistent view taken by the Courts about no one being punished for fault of a counsel, Mr. Jawanda has placed reliance on various judgments to which detailed reference is not necessary. He has also relied on the judgment of the Lahore High Court in Mohan Chand v. Habib, AIR 1925 Lab. 617, in support of the contention that the learned Judge could not have dismissed the application for restoration without giving any reasons for disbelieving the affidavit filed in support or the application for condonation of delay, particularly when it was a case of the kind covered under Order 9 Rule 3 of the Code of Civil Procedure (where both parties are absent on the date of hearing of the appeal) and not one under Order 9 Rule 8 of the Code. The application has been opposed by the Learned Counsel for the Respondents. We, however, find great force in the submissions of Mr. B.S. Jawanda. In fact we feel that the Respondents bad no locus standi to oppose the application for restoration as no notice of the same was necessary to them, and the learned Single Judge should in the circumstances of this case have restored the appeal without bringing the Respondents on the scene as the Respondents were equally at fault in not putting in appearance when the F.A.O. cane up for hearing before him. For the foregoing reasons, we allow this appeal, set aside the order of the learned Single Judge, dated August 17, 1973, condone the delay in filing the application for restoration, and allow the application (C M. 4710 of 1973) for restoration of the F.A.O. The F.A.O. shall now be listed for hearing before any Single Bench at the stop of the board of that Bench no November 6, 1975.;