GANESHI Vs. KHUSHI RAM DWARKA NATH AND OTHERS

JUDGEMENT

(1.) THE facts leading to the various petitions are that R. S. A. No. 940 of 1977 was admitted on 15th June. 1977. It came up for hearing on 11th October, 1985. On that day the Respondents were represented by a counsel but none appeared for the Appellant. It was accordingly dismissed in default. Ganeshi Appellant has now filed the above mentioned Civil Misc. Petitions. Civil Misc. No. 978 -C is under Order 41 Rule 19 read with Section 151, Code of Civil Procedure Code. In this application the Appellant has prayed for restoration of the appeal. Civil Misc. No. 976 -C is under Section 5 of the Limitation Act for condoning the delay in filing the application for restoration of the appeal. This application is supported by an affidavit. From these applications it appears that the Appellant had engaged Shri Rup Chand, Advocate, in the appeal. On 1st September, 1985 Shri Rup Chand, Advocate, met with an accident and was admitted in the P. G. I. for an operation of the fracture of the leg. He was discharged from there in November, 1985. He could not attend the court nor could inform the Appellant. On 13th February, 1986 Appellant's son, who was present in the compound of the trial Court, came to know about the dismissal of the appeal and came to Chandigarh and contacted his counsel. Thus it was prayed by the Appellant that there was no negligence on his part or on the part of his counsel and, therefore, the appeal be restored and the delay be condoned.

(2.) STAY order had been granted in the appeal on 25th July, 1977 subject to certain conditions. The Appellant has filed Civil Misc. No. 977 -C praying the stay of his dispossession.

(3.) THE above observations clearly apply to the present case. The Appellant had engaged a counsel to represent him at the time of hearing. It was ill -luck that his counsel met with an accident and had to be admitted in the hospital for operation. It is too much to expect from a lawyer, who has been admitted in the hospital for an operation, to keep a track of his cases fixed for hearing in the court. Even if for arguments sake it is held that a lawyer is expected to do so, then a party should not suffer on account of his negligence.