JUDGMENT
H.R. Panwar, J.
1. This appeal is directed against the order dated 29.7.1999 passed by Additional District Judge, Gulabpura in Civil Misc. Case No. 10/99 whereby the learned lower appellate court dismissed the application filed by the appellants under Order 41 Rule 19 C.P.C. seeking restoration of Civil Appeal No. 65/1998, which was dismissed in default on 27.10.1998.
2. A suit was filed by the respondent-plaintiff Jaggu against the appellant-defendants for permanent injunction, which was decreed by the trial court vide its judgment and decree dated 13.1.1998. Against the judgment and decree dated 13.1.1998, the appellants had preferred an appeal before the District Judge, Bhilwara, which was subsequently transferred to the court of Additional District Judge, Gulabpura. The appeal was originally filed before the District Judge Bhilwara through the counsel Shri K.G. Sharma practising at Bhilwara. Subsequently it was transferred to the court of Addl. District Judge, Gulabpura and the counsel engaged by the appellants at Bhilwara could not attend the court at Gulabpura on the date fixed for hearing on 27.10.1998 and the appeal filed by the appellants, was dismissed in default. Neither the counsel for the appellants nor the appellate court at Gulabpura informed the appellants regarding transfer of the case from Bhilwara to Gulabpura. However, when the appellants contacted the counsel Shri K.G. Sharma at Bhilwara, they were informed by the counsel that the case has been transferred to Gulabpura and, therefore, the appellants should make their own arrangement to contest the appeal at Gulabpura. Prior to this, the appellants were busy in the treatment of Mst. Ladu daugther-in-law of appellant No. 1 who was admitted in the T.B. Hospital at Udaipur and as such, on 27.10.1998, both the appellants were at Udaipur in order to look after Mst. Ladu. On 7.12.1998 appellants were to Gulabpura and contacted the counsel Shri Shyamlal Trivedi and, enquired about the appeal filed by the appellants. The appellants went informed that the appeal filed by them has already been dismissed on 27.10.1998 in default. An application under Order 41 Rule 19 C.P.C. was filed by the appellants seeking restoration of the appeal. The appellant court vide order impugned dated 29.7.1999 refused to restore the appeal and dismissed the application filed by the appellants.
3. I have heard the learned Counsel for the parties. Perused the order impugned.
4. The application filed by the appellants under Order 41 Rule 19 C.P.C. stating the reasons which prevented them to appear before the appellate court when” the appeal was called for hearing. The application was supported by an affidavit. The facts stated in the application and the affidavit of the appellant Dhanna, have not been controverted by the respondent. The trial court dismissed the application on the ground that the appellants have not mentioned the date when they contacted their counsel at Bhilwara and have not filed the treatment report of the daughter- in-law. Be that as it may. The facts stated in the application supported by an affidavit of the appellant Dhanna, were not controverted by the respondent by reply affidavit. The application under Order 41 Rule 19 C.P.C. was accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay of about 10-11 days in filing the application.
5. Normally, when an appeal is dismissed under Order 41 Rule 17 C.P.C., it is restored and readmitted only when by an application under Order 41 Rule 19 C.P.C. the appellant shows sufficient cause, which prevented him from appearing when the appeal was called on for hearing. The words “sufficient cause” have liberally been construed by the courts. In Shakuntada Devi Jain v. Kuntal Kumari and Ors. , the Hon’ble Supreme Court observed as under:
the words “sufficient cause” receiving a liberal construction so as to advance substantial justice.
6. In Rafiz and Anr. v. Munshi Lal and Anr. , the Hon’ble Supreme Court observed as under:
The disturbing features of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a, rural area and may have no knowledge of the Court’s procedure. 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 not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his counsel nor is he to act as a watch-dog of the advocate that the latter appears in the matter when it is. listed.
7. Their Lordships further held as under:
The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.
8. Thus, the Hon’ble Supreme Court held that on dismissal of appeal for default of appellant’s counsel, party should not suffer for misdemeanour or inaction of his counsel. In the instant case, the appellants have established that they were prevented by sufficient cause from appearing when the appeal was called for hearing. There is no dispute that the appeal was filed at Bhilwara and counsel who filed the appeal is practising at Bhilwara. From the order impugned, it reveals that the appeal was transferred to Gulabpura and there is nothing on record to show that the parties were informed of the transfer of the appeal from Bhilwara to Gulabpura. More so, the appellants have also established by uncontroverted affidavit that Mst. Ladu daughter- in-law of appellant No. 1 was suffering from tuberculosis and she was hospitalised at Udaipur and in order to look after her, the appellants remained at Udaipur and thereafter when they contacted their counsel at Bhilwara, they came to know that the appeal has been transferred to Gulabpura. The delay is only of 10-11 days in filing the application for restoration. Under these circumstances, if the appeal is not restored to its original number, then definitely it would result to an innocent appellant, to suffer injustice. In N. Balakrishnan v. Krishnamurthy , the Hon’ble Supreme Court has held as under:
It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of malafides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant the Court shall compensate the opposite party for his loss.
9. Their Lordships further held that the rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly.
10. Their Lordships further observed that a court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate.
11. The Hon’ble Supreme Court held that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial jut ice. Time limit fixed for approaching the Court in different situations is not because on the expiry of such time a bad cause would transform into a good cause. It was further held by their Lordships that rules of limitation are not meant to destroy the right of parties.
12. In Collector, Land Acquisition, Anantnag and Anr. v. Mst. Kauji and Ors. , the Hon’ble Supreme Court observed as under:
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
13. Thus, it is settled law that while construing the words “sufficient cause”, it must be given liberal construction so as to advance substantial justice. Normally, the courts should adopt justice oriented approach in order to do complete justice between the parties. Without proper adjudication matter cannot be thrown and, therefore, in my considered opinion, it is a fit case to condone the delay in filing the application for restoration of the appeal. More so, in the instant case when the appellants have engaged a counsel to file and conduct the appeal, they have done everything which they were required to do. Thereafter on appeal being transferred to another court situated at a different place, they were not required to remain present when the transferee appellate court called on the appeal for hearing unless the appellants are informed either by their counsel or by the Court. No such intimation to the appellants appears to have been given and, therefore, also the first appellate court ought not to have dismissed the appeal in default. Thus, the order impugned of the first appellate court cannot be sustained and is liable to be set aside.
14. Consequently, this appeal is allowed and the orders impugned dated 29.7.1999 and 27.10.1998 passed by the Addl. District Judge. Gulabpura are set aside and quashed and the appeal filed by the appellants being Civil Appeal No. 65/98 is restored to its original provided the appellants pay cost of Rs. 500/- (Rs. five hundred only) to the respondent or deposit the amount in the appellate court. The learned Addl. District Judge, Gulabpura, is directed to decide the appeal expeditiously on merit in accordance with law.