Birendra Singh Yadav, J. - (1.) THE facts leading to the various petitions are that R. S. A. No. 940 of 1977 was admitted on 15th June. 1977. It came up for hearing on 11th October, 1985. On that day the Respondents were represented by a counsel but none appeared for the Appellant. It was accordingly dismissed in default. Ganeshi Appellant has now filed the above mentioned Civil Misc. Petitions. Civil Misc. No. 978 -C is under Order 41 Rule 19 read with Section 151, Code of Civil Procedure Code. In this application the Appellant has prayed for restoration of the appeal. Civil Misc. No. 976 -C is under Section 5 of the Limitation Act for condoning the delay in filing the application for restoration of the appeal. This application is supported by an affidavit. From these applications it appears that the Appellant had engaged Shri Rup Chand, Advocate, in the appeal. On 1st September, 1985 Shri Rup Chand, Advocate, met with an accident and was admitted in the P. G. I. for an operation of the fracture of the leg. He was discharged from there in November, 1985. He could not attend the court nor could inform the Appellant. On 13th February, 1986 Appellant's son, who was present in the compound of the trial Court, came to know about the dismissal of the appeal and came to Chandigarh and contacted his counsel. Thus it was prayed by the Appellant that there was no negligence on his part or on the part of his counsel and, therefore, the appeal be restored and the delay be condoned.
(2.) STAY order had been granted in the appeal on 25th July, 1977 subject to certain conditions. The Appellant has filed Civil Misc. No. 977 -C praying the stay of his dispossession. After hearing the learned Counsel for the parties I am of the opinion that the above petitions have to be allowed. I would do no better than to quote the following passages from Rafiq v. Munshi Lal, A. I. R. 1981 S. C. 1408. 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 participate 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 watch -dog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. It was further remarked: - What is the fault of the party who having done everything in his power and expected of him would suffer because of the fault of his advocate. If we reject this appeal, as Mr. A. K. Sangh, 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.
(3.) THE above observations clearly apply to the present case. The Appellant had engaged a counsel to represent him at the time of hearing. It was ill -luck that his counsel met with an accident and had to be admitted in the hospital for operation. It is too much to expect from a lawyer, who has been admitted in the hospital for an operation, to keep a track of his cases fixed for hearing in the court. Even if for arguments sake it is held that a lawyer is expected to do so, then a party should not suffer on account of his negligence.;