- (1.) THIS is a miscellaneous civil appeal against an order of the District Judge, Sikar of the 13th of December, 1950.
(2.) SUGANCHAND son of Mahadeo filed a suit against Zorawardan minor under the guardianship of Mt. Jeo Bai, his mother, and Mahadeo, the father of the plaintiff, for possession of a shop on the 10th of September, 1947 in the court of Munsif, Nim-ka-Thana, which was dismissed on the 24th of November, 1949. An appeal was presented to the court of the Civil Judge at Nim-ka-Thana and it was dismissed for default of the appearance of the plaintiff on the 28th of April, 1950. A restoration application was then filed by the appellant on the ground that he ordinarily resided at Calcutta and he had engaged Mr. Chhagnlal and Kapildeo two pleaders at Nim-ka-Thana for the conduct of this case. Both the pleaders had assured him that it was not necessary for the appellant to appear personally on the 28th April, 1950 and the appellant, therefore, acted on the assurance of his pleaders and did not come to Nim-ka-Thana for the prosecution of his appeal. On the said date of the hearing of the appeal, both the lawyers failed to appear as they had to attend certain marriages of their relatives. The learned District Judge dismissed the application for restoration and placed reliance on the observations in the judgment in the case of Gajrajsingh vs. Surajbux Singh and another (1) (AIR 1948 Oudh, 116. ). It has been urged on behalf of the appellant in this appeal that the learned lower court failed to appreciate the observations of the court in Gajraj Singh's case (1 ). The appellant, it is said, had explained the circumstances, under which he remained absent on the date when his appeal was dismissed for default. It was not necessary for the appellant to give good reasons for the non-appearance of his pleaders. The relevant observations quoted by the learned lower court in its judgment, from Gajraj Singh's case (1) are that if the appellant entrusts his appeal to a counsel and the latter does not perform his duty to his client, the latter has a remedy against him but the negligence of counsel in not appearing to argue the appeal will not constitute a sufficient cause for readmitting the appeal not will it absolve the appellant of his responsibility to prosecute the appeal with due diligence. In Gajraj Singh's case no reason was given by the appellant for the absence of the appellant himself and the restoration application was based solely on the ground of the inability of the lawyer to attend at the time the case was called out. It was stated that the lawyer was conducting some other case in some other court and on this ground restoration of the appeal was prayed for. In the present case, the appellant had filed an affidavit in the lower appellate court snowing the circumstances under which he remained absent on the date of the hearing. That affidavit had not been controverted by the other side. The reasons given by the appellant for his non-apperance were that he ordinarily resided at Calcutta and had engaged two pleaders to attend to his case and that he had been assured by his pleaders on the date on which his appeal had been dismissed that it was not necessary for him to come down from Calcutta and that they would arrange to appear in the case. It may be noted that the appellant could trust his lawyers to the extent that they would appear for him and he did not act unreasonably in acting on the assurances of his pleaders that his present was not necessary. This appears to be a sufficient cause in the meaning of Order 41, Rule 19 C. P. C. for the nonappearance of the appellant on the date of the hearing of the appeal at Nim-ka-Thana. The pleaders of the appellant however were negligent in not appearing at the time of the hearing of the appeal for reasons of their own other engagements. The explanation of the pleaders regarding joining certain marriage ceremonies of their relatives is not sufficient to discharge their responsibility to attend to the case. The result is that both the pleaders were negligent in the discharge of their duty. The learned counsel of the appellant has drawn the attention of this court to the judgment in the case of Shanker Das and others vs. Naraindas and others (2) (8 I. C. 226 (6 ).) wherein it has been observed that the pleaders' absence in a case need not be satisfactorily explained if the appellant can give a reasonable excuse for his own absence. Where a party can give a satisfactory explanation for his own absence which may be taken to be a sufficient cause in the meaning of Order 41, Rule 19 C. P. C. want of good explanation for the absence of the appellant's lawyer need not be considered. In the present case, when the appellant has been able to give a satisfactory explanation for his absence which obviously constitutes a sufficient cause in the meaning of Order 41, Rule 19 G. P. C. the lower appellate court ought to have restored the appeal to its original number. The negligence of the pleaders of the appellant is not a good reason for disallowing the petition of the appellant when he had offered a good explanation for his own absence. The decision of Gajraj Singh's case has no application to this case and the lower court was therefor not justified in taking help from it. This appeal is allowed and the order of the lower court is set aside. The appeal shall be restored to its original number in the lower court. No costs shall be allowed to the appellants as costs have also not been ordered to be paid to the respondents for restoration of the appeal. .;