PRAYAD PRASAD DUBE Vs. NANHURAM

JUDGEMENT

(1.) THIS is an appeal against the order of the Commissioner, Bilaspur Division, dated 12-3-64 under which the applicant's application under section 35 (3) of the M. P. Land Revenue Code for the restoration of the appeal that was dismissed in default was rejected. The grounds given by the Commissioner for not allowing the applicant's prayer for the restoration of the appeal are that the appeal was dismissed after waiting till I P. M., and that the case was adjourned twice before-once to accommodate the counsel for the appellant and the other time to accomodate the counsel for the respondent.

(2.) I do not think that the grounds given by the Commissioner for rejecting the applicant's application under section 35(3) provide sufficient justification for the order. The applicant had stated certain facts to account for the default and he had filed an affidavit also to support his statement. There was no counter- affidavit from the other side, and the Commissioner also has not held that the facts alleged by the applicant were incorrect. It is, therefore, to be held that the facts were correct. Ia that case, the default was due to sufficient reason as it was due to the applicant's counsel being busy with professional work in another Court. It has been held by this Board in many oases, on the authority of the rulings of several High Courts including the High Court of Madhya Pradesh, that a party should not be penalised for the default of his counsel even where the default was not due to any professional preoccupations. In this case it is clear that the applicant had engaged a counsel and the default was due to his counsel being preoccupied with professional work in another Court. The application for restoration has been signed by his counsel, and so it can be presumed that the counsel accepted the facts stated by the applicant. In these circumstances it has to be held that there was sufficient reason for condoning the default and restoring the appeal to file.