Full Judgment
Usha Mehra, J.
(1) This order will dispose of an application filed by the petitioner for restoration of this case, which was dismissed in default on 8th November, 1990. The petitioner had filed this probate case against the respondent but after the institution of the suit, the respondent filed the written statement and the time was given to the petition for filing the rejoinder. Neither the rejoinder was filed nor any one on behalf of the petitioner put in appearance. Consequent upon which the suit was dismissed for non-prosecution. On 14th March, 1991, the present application was filed.
(2) This application has been contested by the respondent inter-alia on the ground that the suit was dismissed for non-prosecution, thereforee, the remedy for the petitioner was to file an appeal Moreover, no sufficient cause has been shown for the restoration of the same nor the petition is supported by a proper affidavit.. I have perused the record. Admittedly, the word used white dismissing the suit is dismissed for non prosecution. But the Partial of the order dated 8th November, 1990, would show that it was not for non-prosecution but was dismissed for non-appearance of the lawyer for the petitioner. thereforee, it cannot be said that this was in fact not a case of dismissal in default. Hence, I find no merits in this objections of the respondent. As regards the sufficient cause, admittedly there is a negligence on the part of the lawyer, who was to argue the case on behalf of the petitioner but a party should not suffer because of the negligence of the lawyer- It is a case of the petitioner, which was not denied by the respondent that the petitioner is not a resident of India, and he had entrusted. this case in the hands of a reliable counsel, and that counsel due to negligence gets the suit dismissed in default, to my mind, such a Party cannot be made to suffer. For arriving at this conclusion, I am supported by the decision of our own High Court in the case of Vijar Kumar Nathan's. vs Tek Chand jain & other's reported in 1988 (2), Del L 452 The Supreme Court in the case of Collector, Land Acquision. Anantnag and anr. vs . Mst. Katijia & Others, reported in : (1987)ILLJ500SC , held that the Courts should adop liberal approach while considering the applications such as these under Section 5 of the Limitation Act. The approach has to be dispense even justice on merits in preference to the approach which scuttles a decision on merits.
(3) Relying on these two judgments, also taking into consideration the facts that the negligence and inaction was that of the counsel, I set aside the order dated 8th November, 1990 restore the probate to its original number subject to payment of Rs. 5000.00 as costs. This case may now be listed before the D.R. on 10 2.92 for further directions.