PANWAR, J. - (1.) THIS appeal is directed against the order dated 19. 4. 1993 passed by the learned Additional District Judge, Nimbahera in Civil Misc. Case No. 14 of 1992 whereby he dismissed the application filed by the plaintiff-appellant u/o. 9 R. 8, CPC dated 28. 5. 1990 and refused to restore the Original Civil Suit No. 41/88.
(2.) BRIEF facts of the case, are that the plaintiff-appellant filed a money suit for recovery of Rs. 10,668/- against the defendant-respondent before the learned District Judge, Pratapgarh Camp Chittorgarh, which was subsequently trans-ferred to the Court of learned Additional District Judge, Nimbahera. On 25. 9. 1989, in the presence of counsel for the parties, the suit was adjourned to 25. 11. 1989 for hearing of the arguments on an application filed by the plaintiff-appellant u/o. 38 R. 5, CPC and for filing of the written statement. On 25. 11. 1989, the case was called on but no one appeared for the plaintiff-appellant. However, counsel for the defendant-respondent was present before the trial Court but, he did not file the written statement as directed on the previous date. The learned trial Court dismissed the suit for want of prosecution. Against the order dated 25. 11. 1989, the plaintiff-appellant filed an application before the learned trial Court u/o. 9 R. 8, CPC for restoration of the suit stating therein that although the case was adjourned to 25. 11. 1989 but inadvertently counsel or for the plaintiff-appellant recorded the date of next hearing to be 25. 5. 1990 instead of 25. 11. 1989 and since by bona fide mistake, the next date of hearing was recorded in his Peshi Diary for 25. 5. 1990 and, therefore, the counsel for the plaintiff-appellant could not appear on 25. 11. 1989 before the learned trial Court when the case was called for and, therefore, his. non-appearance resulted in dismissal of the suit for want of prosecution. It was averred in the application that the plaintiff-appellant was prevented by suffi-cient cause for his appearance before the learned trial Court. The affidavits of the plaintiff himself and of Shri Surendra Kumar Sethia, Advocate representing the case of the plaintiff before the learned trial Court, were filed. The defendant-respondent filed reply to the application wherein it was contended that the plaintiff and his counsel were aware of the decision of the suit on the date when it was dismissed. It was also averred that the plaintiff-appellant has failed to show any sufficient cause for his non-appearance on the date fixed i. e. 25. 11. 1989 by the learned trial Court. The learned trial Court vide the order impugned dated 19. 4. 1993 refused to restore the Original Civil Suit and dis-missed the application filed by the plaintiff-appellant. I have heard learned counsel for the parties and perused the record of the learned trial Court. It is contended by the learned counsel for the appellant that learned Additional District Judge, Nimbahera erred in dismissing the application filed by the plaintiff-appellant for restoration of Original Civil Suit u/o. 9 R. 8, CPC. He also contended that due to bona fide mistake of the counsel representing the case of the plaintiff, the date for next hearing was wrongly noted in his Peshi Diary as 25. 9. 1990 instead of 25. 11. 1989. He also contended that this fact was stated in the affidavits of the plaintiff as well as his counsel Shri Surendra Kumar Sethia, copy of Peshi Diary and file cover of the counsel, were also placed on record before the learned trial Court, which corroborates the reasons put forth by the plaintiff-appellant for his non-appearance on 25. 11. 1989 the date ,9xed by the learned trial Court. He further contended that case was not only adjourned for argument on an application u/o. 38 R. 5 CPC, but was also for filing of the written statement by the defendant- respondent. The defendant-re-spondent failed to file the written statement on this date and under these circumstances, the learned trial Court ought not to have dismissed the suit. He further contended that the plaintiff-appellant has shown sufficient cause of his non-appearance on the date fixed by the learned trial Court, learned counsel for the defendant-respondent refuted the contentions raised by the I earned counsel for the appellant.
(3.) NORMALLY, when the suit is dismissed for non-appearance of the plaintiff-appellant, it is restored on an application u/o. 9 R. 8, CPC filed by the plaintiff, if it is established that he was prevented by any sufficient cause for appearing when the case was called on for hearing. The word "sufficient cause" has been liberally construed by the Courts. In Shakuntala Devi Jain vs. Kuntal Kumari & Ors. (1), the Apex Court observed as under:- "the words "sufficient cause" receiving a liberal construction so as to advance substantial justice. " I find no reason to disbelieve the fact stated on oath by filing affidavits both by Shri Surendra Kumar Sethia, learned counsel for the plaintiff before the trial Court and also by the plaintiff accompanied with documentary evidence produced in support of their contention i. e. copy of Peshi diary and file cover of the counsel who was representing the case of the plaintiff wherein date of next hearing was inadvertently or by bona fide mistake noted as 25. 5. 1990 instead of 25. 11. 1989. Since the plaintiff-appellant engaged the counsel and date was fixed for argument on an application u/o. 38 R. 5, CPC as also for filing of written statement which was to be filed by the defendant- respondent, there was hardly any necessity for the plaintiff himself to be present in Court on the date fixed and if the counsel representing the plaintiff inadvertently or by bona fide mistake noted the wrong date in his Peshi Diary and also on the file cover, then it cannot be said that the plaintiff was not bona fide for non-appearance. In Rafiq & Anr. vs. Munshilal & Anr. (2), the Hon'ble Supreme Court observed as under:- "the disturbing feature of the case is that under our present adversary legal system 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 counsel nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it is listed. " Thus, in my considered opinion, in the instant case, the plaintiff-appel-lant has established that he was prevented by sufficient cause from appearing in the Court when the case was called on. Even otherwise also, the plaintiff-ap-pellant cannot be made to suffer for inaction of his counsel. ;