- (1.) THIS is a restoration application under O. 41, R. 19 of the Civil Procedure Code.
(2.) THE facts of the case are that Pannalal's appeal in case No. 42 of 1951 was listed for hearing on the 31st March, 1954, and it was dismissed for default on that date. THE appellant then moved an application for restoration and it was stated on his behalf than he had engaged Mr. D. M. Bhandari to argue his appeal and that on previous occasions his appeal had been listed for hearing a number of times but for some reason or the other it could not be heard and disposed of THE appellant appeared personally to look after his case on former occasions but subsequently Mr. Phulchand, clerk of Mr. Bhandari told him that he need not come to the court as the case would be looked after by the learned counsel THE appellant states in his affidavit that for this reason he did not appear in court on the 31st of March, 1954, and relied on the assurance given to him by Mr. Phul Chand. It is further stated in the application that Mr Bhandari was busy in another case in court No 1 and by the time he came this case was dismissed for default. Mr Bhandari's explanation is that as the list of 29th of March 1934, had not been exhausted and was being taken up on the 31st of March, 1954, he thought that his case would not come up for hearing so soon. But to his surprise the case was taken up much before what he expected and it was dismissed. For these reasons it is prayed that this appeal be ordered to be restored to its original number. Mr. Bareth has appeared on behalf of the respondent, and he opposes this application on the ground that no sufficient cause has been made out for restoration of this appeal. According to him the fact that the learned counsel was busy in another court is not a sufficient cause and the facts that the appellant himself could not take care of his case amounts to negligence on his part and under these circumstances this case should not be restored He has referred to the rulings in Safi Ali vs. Chiragh Ali Shah (1), Nanak Chand vs. Sajad Hussain (2), Hari Das Faquir vs. Praduman Nath (3) and Gajraj Singh vs. Suraj Bux Singh (4 ). What amounts to a sufficient cause in a case has to be determined by the particular circumstances of each case and no hard and fast rule can be laid down for determining what should be construed to be sufficient cause for purposes of O. 41, R. 19, of the Civil Procedure Code. In Safi Ali's case the advocate who was engaged to argue the appeal was busy in another case at the time when the case was called out and he had sent word to the reader of the court asking him to allow 10 minutes time. No indulgence was granted to the learned Advocate because it was at his request that the case had been listed at a higher number in the list for quick disposal and he knew that it was likely to be called on early in the day. The facts that the case had been listed at higher number on the request of the lawyer and that the lawyer knew that the case was likely to be called on early do not appear in the present case and no help, therefore, can be got from that decision in this case. Similarly, Nanak Chand's case lays down that where a Judge for any reason orders a case, which is before him for hearing to be put down lower in the list, he need not give notice to the pleaders of the parties and the counsel are expected to be present with the compound of the court if they have got any case in the list. Under those circumstances it was ordered that there was no sufficient cause for restoration of the case. In the present case no such circumstances exist. Mr. Bhandari was present in the precincts of the court and was busy arguing the ease in the High Court itself before another Bench and there was no question of listing the case higher or lower in. the list and of informing the counsel about it. Hari Das Faquir's case lays down that when a pleader is engaged in another court some one should be left behind to inform the court of the fact, so that, if it likes it can take up some other business and the disappearance of every person connected with the party in the hope that the court will be compelled to wait for the pleader is certainly a wrong method and if the appeal is dismissed the appellant will not be granted a re-hearing. The learned Judge in that case observed that the appellant's pleader on reaching the court did not draw the attention of the Judge to the fact that he hurried from the other court as fast as he could and for this reason it was held that there was negligence on the part of the lawyer. The facts of this case are a bit different because the appellant was assured by the clerk of the counsel that the counsel would (take care of the case himself and the appellant need not appear. Gajraj Singh's case lays down that what amounts to be a sufficient cause for re-admission of an appeal dismissed for default must depend upon the facts and circumstances of each case and no hard and fast rules can be laid down for determining such a question of fact. Under the circumstances of that case it was held that there was no sufficient cause. In the present case the appellant probably was not far wrong in trusting the assurance given to him by Mr. Phulchand, It was urged by Mr. Bareth that there was no evidence that Mr. Bhandari was busy in another case and that he came to this court just after it had been dismissed, and that he expected the case to come up for hearing much later It is true that in the affidavit filed by the appellant these facts do not appear but Mr. Bhandari who is present personally states that it was so and there is no reason not to believe his word on this point. This appeal was listed at No. 1 in the cause 1st of the 31st of March, 1954, but there is a not appended to the cause list which shows that the cases left unheard in the list of the 29th of March, 1954, were to be taken first and then the cases shown in the cause list of the 31st of March, 1954, were to be heard. Mr. Bhandari says that he appeared in the court in the beginning but found that his appeal was not likely to come up for hearing very early. He then went to attend another case in the other Bench which was likely to take very short time but to his surprise before he returned he found his appeal dismissed. Mr. Bhandari should have made some arrangement to inform the Court if he was busy elsewhere but in view of the fact that he expected the case to come up for hearing much later and he took care to come down to the Court in the beginning and also a little later it seems there is sufficient cause for the restoration of the appeal. Certainly the appellant was not negligent and he cannot be penalized for negligence, if any, on the part of his counsel. Under the circumstances of this case, there appears sufficient cause for non-appearance of the appellant, it is, therefore, ordered that it shall be restored to its original number. As Mr. Bareth does not want to take any costs there shall be no order for payments of costs.;