MOOLA Vs. SHRI KISHAN BHARTI

JUDGEMENT

(1.) IF counsel is likely to be busy in any other court on the exigency of professional work, he must intimate the court and pray for the case being put by. It will not do for an Advocate to get a case dismissed for default and then file an application for restoration stating that is absence was either accidental or due to his being busy in another court. Chaturbhuj Sharma, for Appellant This is an appeal against an order of the learned Additional Commissioner Jaipur dated 7. 8. 1959 restoring an appeal dismissed in default. It appears that on 26. 2. 59 on which the appeal in the lower court was fixed for hearing the respondent and his counsel did not appear. On the same day Shri Navneet Kumar counsel for the respondent made an application that as he was busy in a case in some other court, he could not arrive in time and that his client who was blind also could not appear on account of this infirmity. The learned Addl. Commissioner thought this to be a sufficient ground for restoring the appeal. The learned counsel for the appellant before us has completely failed to state any thing against the impugned order. We must however point out that we expect that an Advocate for a party would conduct a case with all the sense of responsibility which he is expected to have in the discharge of his duty to his client. In a case of this type where an appeal is dismissed for default of a counsel, the question arises as to whether there are sufficient grounds for the restoration of the appeal. Courts would ordinarily be inclined to restore the appeal unless there has been gross negligence on the part of the party, because the courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right. As was observed by Lord Thankerton in 63 Ind. App. 12 PC "every litigant has the right to have his case heard and disposed of but that right must not be abused. Having regard to the principle enunciated above the party should not be made to suffer for the negligence or default of his Advocate. In the present case the respondent who was appellant in the lower court is a blind man and he could no do better than engaging a counsel to conduct the case. His absence on the date of hearing is therefore quite natural. The statement of the counsel that he was held up in some other court where he was conducting another case and could not therefore appear in time when the case was called out for hearing in the lower appellate court can not be disbelieved specially when there is no counter allegation by the appellant and for the additional reason that an application for restoration of the appeal was made on the same date. We cannot however refrain from observing and making it clear that every Advocate should be present at the time when a case is called on for hearing and if he is likely to be busy in any other court on the exigency of professional work, he must intimate the court and pray for the case being put by. It will not do for an Advocate to get a case dismissed for default and then file an application for restoration stating that his absence was either accidental or due to his being busy in another court. Looking to the facts and circumstances of the present case, we however, agree with the lower court and confirm the order given by it. The appeal shall in the result stand dismissed. .