JUDGMENT
Narendra Kumar Jain, J.
1. This Misc. Appeal has been filed under Order 43 Rule 1 of CPC against the order dated 3rd March, 2001 passed by Addl. District Judge, Kishangarh whereby he dismissed the application of the defendant appellant for condonation of delay in filing the application for restoration of the appeal and consequently dismissed the application for restoration of appeal.
2. The plaintiff respondent had filed a suit in the lower court which was decreed, against which, an appeal was preferred by defendant-appellants in the court of District Judge, Ajmer. The appellants engaged Kapoor Chand Jain Advocate on their behalf. The aforesaid appeal was transferred from court of District Judge, Ajmer to the court of Addl. District Judge No. 2, Ajmer and again to the court of Civil Judge, Kishangarh. None was present on behalf of defendant appellants before the Appellate Court, therefore the appeal was dismissed in default. However an application for restoration of the appeal was filed along with an application for condonation of delay in filing the application. The appellant explained the delay in filing the application and submitted that he engaged Advocate to file an appeal at Ajmer. The appeal was transferred to the Court of Addl. District Judge No. 2, and appeal was attended by his counsel but appeal was again transferred to the court of Civil Judge, Kishangarh, where no one was present on 18.1.1993 and appeal was dismissed in default. The defendant appellants further submitted that by were told by their counsel, they need not to come on each and every date. They will be called as and when their presence would be required. However, after transfer of the appeal at Kishangarh, they were given their file by their counsel to engage another advocate at Kishangarh. The appellants engaged another counsel namely Mr. V.S. Bafna on 17th August 1993 and moved an application for inspection of the record and thereafter they came to know that appeal had already been dismissed in default on 18.1.93. However, the court below vide impugned order dismissed both the applications.
3. Learned Counsel for the appellants submits that impugned order is illegal and contrary to law as appellants had explained the delay in filing the application for restoration of the appeal as mentioned above. He further submitted that Hon’ble Supreme Court has held in number of cases that for the negligence of the Advocate, they party should not suffer. He has referred Rafiq and Another v. Munshilal and Another , wherein the Hon’ble Supreme Court held as under:
“Where an appeal filed by the appellant was disposed of in absence of his counsel so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel.”
4. Learned Counsel for the appellant has also referred Ramon Services Pvt. Ltd. v. Subhash Kapoor and Ors. (AIR 2001 (SC) 207), in support of his contention.
5. Notice of this appeal was issued to the respondents and service of notice on them is complete. Respondents have entered appearance through their counsel but even in second round on-one is present on behalf of respondents.
6. I have considered the arguments advanced on behalf of the appellants and examined impugned judgment passed by the Addl. District Judge, Kishangarh, who has dismissed the applications of the appellants on the ground that they have not filed affidavit of Kapoor Chand Advocate who appeared in appeal earlier. The Court below has not disbelieved the affidavits of the appellants, which were filed in support of the application for condonation of delay as well as restoration of the appeal. Even if there was no affidavit of Shri Kappor Chand Advocate, still there was no reason to disbelieve the affidavit of the appellant in support of the contents of the application. It is born out from the aforesaid fact that appeal was initially filed before the District Judge which was transferred to ADJ but later on it was transferred to the court of civil Judge Kishangarh far away from Ajmer. In these circumstances, I find that there was sufficient cause for condonation of delay and for restoration of appeal. Although the appeal was delayed because of negligence on the part of the appellant and because of dismissal of appeal in default but this delay could have been compensated by passing an order for payment of cost. The impugned Judgment passed by Addl. District Judge, Kishangarh is therefore liable to be set aside and I set aside the same.
7. The Misc. Appeal is allowed and the impugned judgment dated 3rd March, 2001 passed by the Addl. District and Sessions Judge, Kishangarh in Civil Misc. Application No. 11/93(5/2000) is set aside. The application for condonation of delay as well as the application for restoration of appeal filed by appellants are allowed. Appeal No. 64/89 is restored to its original number. The first Appellant Court is directed to decide the appeal of the appellants on merits after hearing both the parties. The court directed the appellants vide order dated 16.7.2001, to deposit a sum of Rs. 2,000/- towards costs for the respondents. The appellants deposited the amount of costs on 24.7.2001. The plaintiff respondents will be entitle to receive the said amount of costs.
