Judgment:
S.S. Chadha, J.
(1) We have seen the record of suit No. 203/81 is No. 6684/86 was filed through Shri P. K. Bajaj, Advocate. There is an endorse- ment on the opening sheet that Senior Advocate was not available and the petition not to be listed on 21.10 1986. it further states, 'Not to be listed till his availability and he will inform the date'. Case was listed on 1st December, 1986 and there was no appearance and it was adjourned to 11th December, 1986 and the applications were dismissed in default on account of non-appearance. Learned counsel relies on Rafiq and another v. Munshilal and another, and Collector, Land Acquisition, Anantnaq and another v. Mst. Katiji and others, to contend that a litigant should not suffer for an inaction, deliberate omission, or misdemeanour of his counsel. Admit.
(2) Mr. Y. K. Jain states that the appeal be decided on the existing record. Heard. The appeal is directed against an order dated 7th December, 1987 of the learned Single Judge dismissing IAs 1585 and 1586 of 1987. These two applications were for restoration of IAs 6684 and 6682 of 1986. We have summoned the original record. is No, 6682/8 was an application on behalf of defendant No, 2 in the suit, under Order 9 Rule 13 of code of Civil Procedure for setting aside the exparte Judgment and decree dated 23rd September, 1986. is No. 6684/86 was an application on behalf of defendant No. I under Order 9 Rule 13 read with section 151 of Code of Civil procedure for setting aside exparte judgment and decree dated 23rd September, 1986. In the urgent memo attached with these two applications, a request is made initially for listing the matter for 21st October, 1986. Later on, the respective counsel in each case made another endorsement dated 20th October, 1986 staling that senior Advocate was not available and the petition should not be listed on 21st October, 1986. Another request was made that the applications should not be listed till availability of the senior counsel and that the counsel would inform the date. The registry listed the two applications before the learned Single Judge on 1st December, 1986 when none was present. Learned Single Judge directed that the applications be re-notified on 11th December, 1986 when these were dismissed in default.
(3) After the appellant came to know of the order dated 11th December, 1986, the applications under Section 151 of the Code of Civil procedure were filed for restoration of lAs 6684/86 and 6682/86.
(4) A definite averment has been made in the two applications under Section 151 of the Code of Civil Procedure that IAs 6682 and 6684 of 1986 were listed without the consent of the counsel, that as the counsel does not get High Court cause list, he/she could not attend the matter, and that the party will suffer great irreparable loss and injury if IAs 6682 and 6684 of 1986 are not restored. Apart from the fact that the counsel may be under a bona fide doubt as to the listing of the applications before the learned Single Judge, the party should not suffer because of the inaction, default or negligence of his counsel. The law on this aspect has been reiterated by the Supreme Court in the case of Rafiq and another v. Munshilal and another, wherein it was held.
'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. thereforee, 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. Mr. A. K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. It we reject this appeal, at Mr. A. K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest be represented. 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.'
(5) In the case of Collector, Land Acquisition, Anantnaq and another v. Mst. Katiji and other, their Lordship has held that the courts should adopt liberal approach while considering the applications such as those under Section 5 of the limitation Act. The approach has to be to dispense even justice on merits in preference to the approach which scuttles a decision on merits.
(6) We, thereforee, set aside the order under appeal dated 7th December, 1987 and allow the applications IAs 1585 and 1586 of 1987 and restore IAs 6684 and 6682 of 1986 to its original numbers. Learned Single Judge shall determine those applications on merits. On the facts and circumstances, we make no order as to costs.
(7) Parties are directed to appear before the learned Single Judge on 3rd November, 1988.