PHERU Vs. SURSATI

JUDGEMENT

(1.) THIS revision has been filed against the order dated 24-4-90 passed by learned Additional Commissioner, Gorakhpur Division in a restoration application filed in Appeal No. 719 of 1979, district Azamgarh.

(2.) BRIEFLY the facts of the case are that during the pendency of the appeal before the learned Additional Commissioner no body appeared on behalf of the present revisionist. Pheru. The appeal was dismissed in default. On 5-12-86 an application for recalling the order dated 3-7-76 was filed stating therein that the revisionist had engaged Sri Chail Behari Advocate and had paid the full fees etc. and the Advocate had ensured him that every thing needful would be done. But as he did not hear any thing from his Counsel for the last ten years he rushed to the Court and on finding that the appeal had been dismissed in default moved an application for restoration. The learned Additional Commissioner rejected the application for restoration. Feeling aggrieved by this order the present revision has been filed.

(3.) THE revisionist Pheru had filed an affidavit in support of his allegations made in the restoration application that he had engaged a Counsel and paid him full fees etc. It is now a well known principle that a client should be penalised for the fault or negligence on the part of the Counsel. In the present case it has been shown that the revisionist was interested in prosecuting the appeal and was doing whatever was possible on his part. In the circumstances of the present case, the averment made in the affidavit of the other side that the revisionist moved an application for getting the appeal dismissed also does not appear to be believable. The learned Additional Commissioner drew a wrong inference from this circumstance even if the said application was not produced in the Court.