CHANDMAL HARAKCHAND Vs. MAGANLAL VEERCHAND

JUDGEMENT

(1.) THIS appeal is preferred against an order refusing to restore an appeal dismissed for default.

(2.) THE circumstances in which the impugned order was passed were that the appeal was fixed for hearing on 18 -3 -1959. On that day neither the appellant nor his counsel was present and the appeal was consequently dismissed for default. An application for restoration was submitted under the provisions of Order 41, rule 19, Civil Procedure Code under the signature of the counsel Mr. M.D. Deshmukh. The reason put forth by the counsel for his absence on the date of hearing was that, that day he had gone to some other place and had expected to return during the Court time but could not do so due to accidental reason. This was ipso facto considered to be not a sufficient cause for the absence of the appellant or his counsel. The Court below therefore refused to restore the appeal.

(3.) IT is contended by Mr. Vijayvargiya for the appellant on the basis of the decisions reported in Pandu v. Hira AIR 1936 Nag 85 and Premshankar v. Rampyarelal 1944 NLJ 269 : AIR 1944 Nag 317 : ILR 1944 Nag 558, that when once a party engages a counsel to represent his case particularly in an appeal he should be taken to have done everything that is necessary for the prosecution of the case and in case the counsel does not appear for any reason he should not be met with a penalty of dismissal of the appeal. His personal absence should be taken to have been sufficiently accounted for by reason of the engagement of a counsel.