SHYAM DAS Vs. PRAVEEN KUMAR

JUDGEMENT

(1.) CIVIL Misc. Appeal No. 30 of 1979, was listed for hearing on 26. 11. 1987. None was present on behalf of both the sides and as such the same was dismissed in default. On 4. 9. 1988,the appellants submitted an application for restoration of the- said appeal under Order 41 Rule 19 C. P. C. with the allegations that the aforesaid appeal was in due course and for the first time, it was listed for hearing on 9. 11. 1987. On that day, none was present on behalf of respondents. Counsel for the appellants prayed for time to seek instructions from the appellants. The appellant No. 1 resides at Indore, and is heart-patient. The appellant No. 2 resides at Ajmer, and is 90 years old. The appellants engaged Shri B. L. Samdaria Advocate of Ajmer to argue the appeal. Mr. Samdariya used to come at Jaipur on Monday, Tuesday and Wednesday in a week. The appeal was listed for hearing on 23. 11. 1987, it could not reach upto 25. 11. 1987. Under these circumstances, Shri Samdaria, while leaving for Ajmer, in the evening of 25. 11. 1987, instructed his Assistant Smt. Maya Bansal Advocate, to look after the appeal on 26. 11. 1987 and 27. 11. 1987, and in case the appeal is called for hearing, she should make a request for adjournment for Monday. Counsel for the appellants assured the appellants that their presence was not necessary at the time of hearing and further that he himself would argue the case. Counsel for the appellants remained under the impression that the appeal was de-listed. On 28. 8. 1988, the appellant No. 2 came to the office of Shri B. L. Samdaria at Ajmer, ad asked about the position of his appeal; that on 31. 8. 1988, when Shri Samdaria came Jaipur, he made inquiries and then it was found that the appeal was dismissed in default on 26. 11. 1987. Under these circumstances the appellants filed restoration application with the allegations that the absence of the appellants and their counsel on 26. 11. 1987, when the appeal was called for hearing, was not intentional but was bona fide. It was prayed that the order dated 26. 11. 1987, dismissing the appeal in default be recalled and the appeal be taken to its original number. This application is supported by the affidavit of appellant No. 2 Dhan Singh and also by an affidavit of Shri B. L. Samdaria, counsel for the appellants. Alongwith the application, the appellants also submitted an application under Section 5 of the Indian Limitation Act.

(2.) THE respondent No. 2 submitted a reply to the said application alleging that the appeal was adjourned to 23. 11. 1987, on the request of counsel for the appellants, that the appeal was continuously listed for hearing, that the counsel for appellants should have requested the Court on 25. 11. 1987, for adjournment when he was going to Ajmer, or should have made other arrangement that when the appeal was not listed on 30. 11. 1987, in the daily cause list, counsel for the appellants should have made inquiries about the appeal that the appeal was filed in the year 1979, and a period of more than ten years was passed but the appellants did not take any interest in the appeal, that the counsel of the appellants was negligent and as such there was no sufficient reason for restoring the appeal.

(3.) IN Rafiq's case (supra), the Hon. Supreme Court observed as below:- "after engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal the personal appearance of the party is not only required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he had neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch dog of the advocate that the letter, appears in the matter when it is listed. It is no part of his job. It was further pointed out that as per the present adversary legal system when a person selects his advocate, briefs him and pays, his fees can supremely remain confident that his layer will look after his interest and as such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction deliberate omission or misdemeanour of his counsel. "