KOCHHAR, J. - (1.) THE brief facts giving rise to this application dated 8-8-1990 filed by the applicant Salim Bux under Order 41 Rule 19 and Section 151 of the Code of Civil Procedure, are as under:-
(2.) SHRI Maula Bux (the original defendant-appellant) had been in possession of the land in dispute. The plaintiff- respondent filed a suit in or around the year 1966 for possession of the land in dispute on the ground that he had purchased it from the Municipal Board, Jhalawar under a registered sale-deed and was entitled to take possession thereof from the defendant- appellant. The suit was contested by the defendant-appellant. After trial, the learned trial court dismissed the suit. The appeal filed by the plaintiff-respondent was heard by the learned Civil Judge, Jhalawar, who allowed the appeal and decreed the suit for possession. Feeling aggrieved, the defendant-original appellant filed second appeal in this court which was registered as S. B. Civil Second Appeal No. 43/78 and was admitted on 17-2-1978. Along with the memorandum of appeal, an application for stay of the execution of the decree passed against the defendant-original appellant was also moved and the execution of the decree for possession was stayed vide order dated 5. 1. 1979 on the defendant's depositing certain amount by way of arrears of mean-profits and future mean-profits and future mean profits. The defendant-original appellant having died and an application having been moved, his sons Salim Bux (the present applicant) and Bashir Mohammad besides his daughters Mst. Chamma, Mst. Wahidan and Mst. Kalsum were brought on record as his legal representatives vide order dated 28. 11. 1979 passed by this court. The appeal was fixed for hearing before M. B. Sharma, J. on 11-1-1980 when it was dismissed in default for non-prosecution. On an application having been moved, the appeal was re-admitted and restored to its original number. It came-up for hearing on 31- 10-1986 before S. N. Bhargava,. 1. when none appeared on behalf of the appellants although the learned counsel , for Respondent was present, and as such, the appeal was dismissed in default for non-prosecution. The application for restoration of the appeal filed by the legal representatives-appellants was originally opposed on behalf of the respondent, but, lateron, he did not oppose the restoration and the application was allowed and the appeal was restored to its original number. The appeal again came-up for hearing on 22. 12. 1988 when it was listed before S. C. Agarwal, J. On this date also none appeared on behalf of the appellants and, as such, the appeal was dismissed in default for non-prosecution and the stay was vacated. The appellants there after filed an application for re-admission of the appeal on the ground that their learned counsel Shri Ahmed Bux had to rush to Jodhpur to argue a criminal application and the other learned counsel Shri Ravi Kasliwal although instructed had failed to appear as on the same day his wife had delivered a child and he was busy attending to her. The appeal was thereafter re-admitted and restored to its original number. It was fixed for hearing on 9. 7. 1990 when none appeared on behalf of the appellants till 3. 37 P. M. although the learned counsel , for Respondent was present and , as such, it was dismissed in default for non- prosccution. The present application was moved staling that Shri Ahmed Bux, the learned counsel for the appellants resides at Kola and his maternal sister suddenly fell ill on account of failure of kidney and she died on the day when the marriages of her daughter and her three grand daughters had to be celebrated and, as such, the learned counsel could not move from Kola from Ist week of July to 3rd week of July, 1990 and that three trunk calls were made to Shri Ravi Kasliwal, Advocate and Shri M. Rafiq, Advocate (who are also representing the appellants as Advocates),bul they could not be contacted. It is also stated that the case was listed at serial No. 95 and either the electronic indicator affixed in the court was not working or was not used and no indication was given on the indicator about the case up to 4-30 P. M. and , as such, the clerk and the applicant did not know that the case had reached. In these circumstances, it has been prayed that the appeal be restored. The application has been opposed on the ground that the appellants have been taking the appeal and the stay in a very casual manner as if they would always get indulgence of restoration of the appeal and stay application. It is also staled that there is no explanation about the absence of the other two Advocates namely Sarva Shri Ravi Kasliwal and M. Rafiq, who did not appear and that in view of the back-ground of the case the appellants should have been more careful specially when they knew that the head quarters of their learned counsel Shri Ahmed Bux was not in Jaipur and that Shri Ahmed Bux could not leave Kota due to he illness of his cousin sister and due to the marriages of her daughter and grand daughters. It is also staled that the applicant who himself was present on the date when the appeal was dismissed should have attended the court. It has been denied that the electronic indicator had given wrong information and it is stated that it is an excuse. It has been further contended that there is no sufficient cause. On the pleadings of the parties, the following issue was framed on 22-11-1990 : - "whether the sufficient cause is shown for restoration of the appeal dismissed in default on 9-7-1990?" With the consent of the parlies, the affidavit filed by Shri Ahmed Bux, Advocate in support of the application was taken as the evidence on behalf of the applicant on the above said issue and the affidavit filed by respondent along with his reply to the application was taken as the evidence on behalf of the respondents. No other evidence has been produced by the parties, who closed their evidence by stating that they would rely on the above said affidavits only. I have heard the learned counsel for the parlies and have also perused the record of the case.
(3.) THE affidavit of Shri Ahmed Bux, Advocate supports the case of the applicant that Shri Ahmed Bux, Advocate could not leave Kota during the first three weeks of July, 1990. THEre is, however, no evidence, whatsoever, to explain as to why the other Advocates of the appellants namely Sarva Shri Ravi Kasliwal and M. Rafiq besides the applicant himself who was present in the court premises on 9-7-90 did not attend the court on that day. Although, in the application it has been stated that the electronic indicator did not correctly indicate about the case having reached, no evidence has been produced by the applicant in this regard also. On the contrary, the evidence in the form of affidavit of the respondent has denied this fact. In the application even the name of the clerk who had been watching the indicator has not been mentioned and no explanation is coining forward either in the application or in the evidence as to why the applicant who had come all the way to Jaipur in connection with the above said appeal did not attend the court but remained watching near the electronic indicator through-out the day. THEre is thus no explanation not only about the absence of the above said two Advocates but also of the applicant who was present in the court premises in Jaipur on the relevant dale. Rule 19 of Order 41 of the Code of Civil Procedure empowers the court to re-admit an appeal dismissed in default only when it is proved by the appellant that he was prevented by any sufficient cause from appearing when the appeal was called for hearing and the appeal thus cannot be restored as a matter of course. In these circumstances, I have no hesitation in deciding the issue against the applicant and in favour of the respondent. It has been contended that the applicant cannot be made to suffer due to the fault of his lawyers and, as such, the appeal should be restored. Reliance has been placed on the decisions of the Hon'ble Supreme Court in cases Rafiq & anr. V/s. Munsi Lal & anr. (1) and Smt. Lachhi Tiwari & ors. V/s. Director of Land Records & ors. (2)I have gone through the said authorities. They are the authorities on their own facts and in those cases the Hon'ble Supreme Court came to the conclusion that the appellants concerned had done all that was required to be done for being represented and should not be made to suffer for the fault of their lawyers. The above said authorities do not lay down that the matters dismissed in default should be restored as a matter of course to give liberty to the parties or their Advocates to appear or not to appear in the court according to their wish, desire and convenience. If this interpretation is given to the above said authorities it would mean that the parties and their learned counsel can put the working of the court out of gear at any time and, in my view, no such intention can be imputed to the Hon'ble Supreme Court. In any event, in the present case, it cannot be said that the appellants have done whatever was required to be done by them, specially when the applicant who himself was present in the court premises did not care to attend the court and allowed the case to be dismissed in default. In view of my above discussion, I find no ground for restoration of the appeal and, consequently, dismiss this application. . ;