ORDER
C.K. Prasad, J.
1. This application has a chequered history. Petitioner filed Misc. Appeal No. 402 of 1992 against the order dated 6-7- 1992 and 25-8-1992 passed by the IVth Additional District Judge, Raipur in Civil Appeal No. 10 of 1992. By order dated 9-11-1994 the appeal was admitted and notice was directed to be issued to the respondents on payment of process fee within 3 days. Process fee as directed by the aforesaid order was not paid and the matter was listed before the Court on 30th November, 1994. On the said date, nobody appeared on behalf of the petitioner. However, this Court showing indulgence, again granted 10 days time to the petitioner to pay the process fee, failing which, it was directed that the appeal shall stand dismissed automatically, with out reference to the Court. This order was also not complied with by the petitioners and in view of the peremptory nature of the order the appeal stood dismissed. Petitioner then filed M.C.C. No. 69/1996 for restoration of Misc. Appeal No. 402/92. When this miscellaneous application was posted for consideration on 7-1-1997, nobody appeared on behalf of the petitioner and accordingly the case was dismissed for default. Petitioner then filed M.C.C No. 42/97 for restoration of M.C.C. 69/96 and this Court by its order dated 21-3-1997 restored M.C.C. No. 69/96. It is because of restoration of M.C.C. No. 69/96 that the same has been posted for consideration before me. It is relevant here to state that in the application (M.C.C. No. 69/96) the stand of the petitioner is that in the light of the peremptory order dated 30-11-1994, passed in Misc. Appeal No. 402/92 process fee was paid on 5-12-1994. However, this assertion of the petitioner does not find support from the record and accordingly I have no hesitation in holding that the petitioner did not comply with the peremptory order dated 30-11-1994 and the appeal was rightly dismissed.
2. It is relevant here to state that by order dated 20-11-1996, passed in M.C.C. 69/96, the default of the petitioner in paying the process fee in Misc. Appeal was condoned and three days further time was granted to pay the process fee. It is the stand of the petitioner that he has complied with the aforesaid order. I have asked the Additional Registrar (J) to submit a report as to whether process fee in pursuance of the order dated 20-11-1996 has been paid or not. The report of the Additional Registrar (J) dated 26-8-1997 reads as follows :
“On verification, it has been found that the P.F. alleged to have been filed by the learned counsel on 20-11-1996 in this M.C.C. was in fact submitted in C.R. No. 622/95, photo-copy of the relevant entry in the filing register is annexed hereto at flag ‘A’ for kind perusal.
As is evident, the words ‘M.C.C. No. 69/96’ in the alleged acknowledgment are hand written, whereas the number of the aforesaid Civil Revision appears to be typed with the other contents thereof.
So far as the office report regarding furnishing of P.F. in this M.C.C. on 18-12-1996 is concerned, it has found to be true in view of the endorsement in the process purcha available on record coupled with the relevant entry in the P.F. Register, photostat copy of which is annexed hereto at flag ‘B’.”
Therefore, the stand of the petitioner that in pursuance of the order dated 20-11-1996 P.F. has been paid does not seem to be correct.
3. Facts narrated above clearly show that the petitioner is negligent in pursuing the case. She did not pay the P.F. within 3 days as directed by order dated 9-11-1994, she even did not comply with the peremptory order dated 30-11-1994 passed in M.A. No. 402 of 1992. M.C.C. No. 69/96 was dismissed for non-appearance on 7-1-1997 and even the order dated 20-11-1996 passed in M.C.C. No. 69/96 has also not been complied with.
4. It is relevant here to state that the petitioner in the application has stated as follows :
“5. Even assuming that there was mistake of the counsel, it is respectfully submitted that the applicant should not suffer for the same, and the Misc. Appeal No. 402/92 deserves to be restored to file after setting aside the automatic order dated 30-11-1994, if necessary, kindly see AIR 1981 SC 1400. ”
Notwithstanding the aforesaid negligence on the part of the petitioner, Shri Pandey appearing on behalf of the petitioner submits that it was the fault on part of the counsel not complying with the order, and he having failed in his duties, petitioner cannot be permitted to suffer. Shri Pandey in support of the aforesaid submission has placed reliance on the judgments of the Supreme Court in the case of Rafiq v. Munshilal, AIR 1981 S.C. 1400 and in the case of Smt. Lachi Tewari v. Director of Land Records, AIR 1984 S.C 41. In the case of Rafiq (supra), it has been held as follows :-
“3. The disturbing feature 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 appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. ”
In the case of Smt. Lachi Tewari, the Apex Court, after relying on its earlier judgment in the case of Rafiq (supra) restored the case which was dismissed in default. The background of the aforesaid case finds place in paragraph 3 of the Judgment which reads as under :-
“It appears that soon thereafter within a span of about 10 days an application was moved on behalf of the petitioner pointing out to the Court the circumstances in which neither the petitioner nor his three learned counsel were present and sought the indulgence of the Court to recall the order dated April 21, 1983 on the ground that April 21, 1983 happened to be a day on which the Court reopened after Bihu holidays and that the learned Senior Counsel who had gone to Calcutta during the vacation had not been able to return on account of the irregularity of air services. It was further stated that the two other learned counsels were busy in Courts Nos. 2 and 3 when the matter was called for hearing and a request was made to pass over the matter. This ground did not find favour with the learned Judges of the High Court and the application for recalling the order was rejected. Hence this appeal by special leave.”
5. Order 43, Rule 2 of the Code of Civil Procedure provides that rules of Order 41 shall apply so far as may be to appeals from orders. Order 41, Rule 18 provides for dismissal of appeal where notice is not served in consequence of appellant’s failure to deposit cost. Order 41, Rule 19 provides for readmission of appeal dismissed for default when it is proved to the satisfaction of the Court that the appellant was prevented by any sufficient cause from depositing the sum required. Order 41, Rule 19 reads as follows :-
“Re-admission of appeal dismissed for default. – Where an appeal is dismissed under Rule 11, sub-rule (2), or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.”
6. In the background of the aforesaid factual position one has to see as to whether petitioner was prevented from depositing the process fee by sufficient cause and the mistake by the counsel, ipso facto comes within the expression sufficient cause for re-admission of the appeal. Nothing has been pleaded to show in what manner the appellant was prevented in depositing the process fee. Nothing needs to be decided on this count. In relation to other count, I am of the opinion that bona fide mistake on part of the counsel may be construed as sufficient cause. However, there is distinction between bona fide mistake and negligence. I am of the considered opinion that negligence on part of the counsel cannot be equated with sufficient cause. Here in the present case, as stated earlier, not once but on several occasions, the orders were not complied with. In that view of the matter, I am of the opinion that no sufficient cause has been shown for re-admitting the appeal. One has to bear in mind that Order 41, Rule 17 provides for dismissal of appeal for appellant’s default and the explanation inserted by Act No. 104 of 1975 w.e.f. 1-2-1977 makes it clear that Order 41, Rule 17 does not empower the Court to dismiss the appeal on merits.
7. Now I advert to consider the submission of Shri Pandey that notwithstanding default on part of the appellant or sufficient cause being shown, the petitioner cannot be permitted to suffer on account of “mistake of the counsel”. Mistake of counsel, if bona fide, is definitely a ground for restoration of appeal but whether repeated mistakes on part of the counsel stand on the same pedestal, is the question, which falls for determination in the present case. In my opinion mistake, irrespective of its number, if has occurred bona fide, may be construed as sufficient cause for restoration. However, mistakes out of carelessness repeatedly, on part of the counsel, cannot be construed as sufficient cause. The authorities relied on by the learned counsel has to be understood in the context it was laid. In the cases relied on by Shri Pandey, there were sufficient explanation for non-appearance of the counsel, which is not the position here. The authorities relied on, cannot be read to mean that in no circumstance, the party can be permitted to suffer on account of mistake of the counsel. In my considered opinion, acceptance of this wide proposition, will throw the entire system out of gear, beyond repair. Order 41, Rule 17 bars dismissal of appeal on merits, in the absence of the counsel. Repeated dismissal of appeal on account of non-appearance of the counsel has to be followed by its repeated re-admission, shall I accept this wide proposition. This is not the intention of law, and I am sure is not the legal position. I am of considered opinion that sufficient cause has to exist for restoration of the appeal. This being lacking in the present case application has no merits.
8. In the result, I do not find any merit in this application and it is dismissed accordingly. No cost.