- (1.) CIVIL Misc. Appeal No. 30 of 1979, was listed for hearing on 26. 11. 1987. None was present on behalf of both the sides and as such the same was dismissed in default. On 4. 9. 1988,the appellants submitted an application for restoration of the- said appeal under Order 41 Rule 19 C. P. C. with the allegations that the aforesaid appeal was in due course and for the first time, it was listed for hearing on 9. 11. 1987. On that day, none was present on behalf of respondents. Counsel for the appellants prayed for time to seek instructions from the appellants. The appellant No. 1 resides at Indore, and is heart-patient. The appellant No. 2 resides at Ajmer, and is 90 years old. The appellants engaged Shri B. L. Samdaria Advocate of Ajmer to argue the appeal. Mr. Samdariya used to come at Jaipur on Monday, Tuesday and Wednesday in a week. The appeal was listed for hearing on 23. 11. 1987, it could not reach upto 25. 11. 1987. Under these circumstances, Shri Samdaria, while leaving for Ajmer, in the evening of 25. 11. 1987, instructed his Assistant Smt. Maya Bansal Advocate, to look after the appeal on 26. 11. 1987 and 27. 11. 1987, and in case the appeal is called for hearing, she should make a request for adjournment for Monday. Counsel for the appellants assured the appellants that their presence was not necessary at the time of hearing and further that he himself would argue the case. Counsel for the appellants remained under the impression that the appeal was de-listed. On 28. 8. 1988, the appellant No. 2 came to the office of Shri B. L. Samdaria at Ajmer, ad asked about the position of his appeal; that on 31. 8. 1988, when Shri Samdaria came Jaipur, he made inquiries and then it was found that the appeal was dismissed in default on 26. 11. 1987. Under these circumstances the appellants filed restoration application with the allegations that the absence of the appellants and their counsel on 26. 11. 1987, when the appeal was called for hearing, was not intentional but was bona fide. It was prayed that the order dated 26. 11. 1987, dismissing the appeal in default be recalled and the appeal be taken to its original number. This application is supported by the affidavit of appellant No. 2 Dhan Singh and also by an affidavit of Shri B. L. Samdaria, counsel for the appellants. Alongwith the application, the appellants also submitted an application under Section 5 of the Indian Limitation Act.
(2.) THE respondent No. 2 submitted a reply to the said application alleging that the appeal was adjourned to 23. 11. 1987, on the request of counsel for the appellants, that the appeal was continuously listed for hearing, that the counsel for appellants should have requested the Court on 25. 11. 1987, for adjournment when he was going to Ajmer, or should have made other arrangement that when the appeal was not listed on 30. 11. 1987, in the daily cause list, counsel for the appellants should have made inquiries about the appeal that the appeal was filed in the year 1979, and a period of more than ten years was passed but the appellants did not take any interest in the appeal, that the counsel of the appellants was negligent and as such there was no sufficient reason for restoring the appeal. I have heard learned counsel for the parties and perused the record. The appeal was admitted in 1979. Record was also called. Opposite party was also served in the year 1979, and, thereafter, the appeal remained in due course. For the first time, it was listed for hearing on 9. 7. 1987, on that day, none was present on behalf of the respondents, the appeal was adjourned to 23. 11. 1987, on the request of Shri B. L. Samdaria, counsel for the appellants. It is an admitted fact that the appeal was listed and also remained in the daily cause list from 23. 11. 1987 to 25. 11. 1987. It is not denied that Shri B. L. Samdaria, counsel for the appellant left for Ajmer, in the evening of 25. 11. 1987, after giving necessary instructions to his Assistant. The appeal was listed on 26. 11. 1987. None was present on behalf of the appellants and also on behalf of respondents and as such the appeal was dismissed in default. This fact is not denied that the appellant No. 2 Dhan Singh met Shri Samdaria at his Ajmer office on 28. 8. 187, and inquired about his appeal. On 31. 8. 1988, counsel for the appellants made inquiries from the registry and came to know that the appeal was dismissed in default on 26. 11. 1987, and under these circumstances the present application for restoration of appeal was filed. Counsel for the applicants argued that there was no negligence of the appellants and their Counsel. Shri Samdaria was looking after the appeal since 1979. No proceedings in appeal took place for about eight years and the appeal was listed for the first time on 9. 11. 1987, on which date the counsel for the respondents was absent but on the request of Shri Samdaria, the appeal was adjourned to 23. 11. 1987 (Monday ). Counsel for the applicants further argues that Mr. Samdaria used to come on Monday. Tuesday and Wednesday to Jaipur to argue his cases in a week. The appeal though was listed on 23. 11. 1987 (Monday) and remained in cause list but could not be heard till 25. 11. 1987, and under these circumstances, Mr. Samdaria had to go to Ajmer to attend his cases, which were fixed at Ajmer on 26. 11. 1987. Under these circumstances, he directed his Assistant to look after the appeal but his Assistant was negligent in discharging her duties and as such the applicants, who paid their fee to Mr. Samdaria, should not suffer. It has been further argued that counsel for the applicants informed the applicants that their presence was not necessary at the time of hearing and further that he would argue the appeal on their behalf. Counsel for the applicants prays that under these circumstances, if there was any negligence, it was the negligence of the counsel for, which the applicants should not suffer and in support of this arguments, counsel for the applicants placed reliance on the judgments reported in Rafiq and another vs. Munshi Lal and another (1) and M/s Krishna Oil Mills and others vs. Firm Shriniwas and Co. and Others Counsel for the applicants further argued that on 26. 11. 1987, when the appeal was called for hearing even the non-applicants counsel was absent and as such appeal can be restored to its original number without any notice to the respondents. On the other hand, Shri D. L. Bardar, counsel for the non-applicants (respondents) argued that the appeal was adjourned to 23. 11. 1987, on the request of the counsel for the applicants. It remained in daily cause list and under these circumstances, the counsel for applicants should have made a request to the Court on 25. 11. 1987, when he was going to Ajmer, for adjourning the appeal or should have made other arrangements. He further argued that the applicants and their counsel remained negligent and as such the appeal should not be restored. He further argued that the appeal was pending since 1979 and as such it should not be restored now. He further argued that there was no sufficient reason for restoring the appeal to its original number. The application submitted by the applicants deserves to be dismissed.
(3.) IN Rafiq's case (supra), the Hon. Supreme Court observed as below:- "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 required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he had 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 letter, appears in the matter when it is listed. It is no part of his job. It was further pointed out that as per the present adversary legal system when a person selects his advocate, briefs him and pays, his fees can supremely remain confident that his layer will look after his interest and as such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction deliberate omission or misdemeanour of his counsel. " In the present case, the applicants were assured by their counsel that their presence was not necessary at the time of hearing of the appeal and further that the counsel would argue the appeal. Further more, the appeal remained in due course for about nine years. Under these circumstances, there was no fault of the applicants, when they remained absent on 26. 11. 1987, when the appeal was called for hearing. If there was any negligence, it was the negligence of the Assistant of Mr. Samdaria, who did not inform the Court that Shri Samdaria had to go Ajmer to attend his other cases. Under these circumstances, when there was no negligence on the part of the applicants, they should not suffer. The applicants had already paid full fee to their counsel alongwith the file and they were confident that their counsel would look after the appeal. Under these circumstances, as held by the Apex Court in the aforesaid judgment, the applicants should not suffer on account of inaction or negligence on the part of their counsel. In my opinion, there was sufficient cause preventing the applicants from appearing in the Court on 26. 11. 1987, when the appeal was called for hearing. Consequently, I allow the restoration application, recall the order dated 26. 11. 1987, dismissing the appeal in default and restore the same to its original number. ;