The default of the counsel should not lead to the dismissal of the appeal, and the party should not be allowed to suffer for the counsel's default.

Gurusharan Sharma, J.

1. Title Suit No. 140 of 1967 was filed by the original plaintiff, Jagdeo Chaudhary for a declaration that the sale-deed dated 7.4.1956 said to be executed by the defendant No. 3 in favour of defendant Nos. 1 and 2 null and void and not binding on him. The suit was dismissed on 21.7.1982. The plaintiff preferred Title Appeal No. 102 of 1982 in the Court of District Judge, Siwan against the said judgment and decree.

2. During pendency of the appeal Jagdeo Chaudhary died leaving behind a widow two minor sons and one minor daughter, who were substituted. However, on 29.9.1986 the appeal was dismissed for non-prosecution.

3. An application under Order XL1 Rule 19 of the Code of Civil Procedure was filed for readmission of the appeal. It was registered as Miscellaneous Case No. 26 of 1988.

4. By the impugned order dated 29.2.1992, the Court below came to conclusion that the widow of the sole appellant late Jagdeo Chaudhary, namely, Mostt. Etwaria who was substituted in his place failed to examine herself and prove that she was prevented for sufficient cause from appearing in the appeal on 29.9.1986, when it was called out for hearing.

5. In my opinion, the approach of the Court below was not correct. Personal appearance of Etwaria, the appellant No. 1 was not necessary on 29.9.1986 in Court, when the appeal was called out for hearing. She was already represented by a counsel. It was absolutely the default of the counsel, who was not present to argue the appeal on behalf of the appellants on the absence of the appellants counsel the appeal was rightly dismissed for non-prosecution.

6. In my view for a default purely on the part of the counsel, the party concerned must not be allowed to suffer. Further the order-sheet of the appeal reveals that though on 29.9.1986 a petition for time was filed on behalf of the appellants but the counsel neither moved nor was present to argue the appeal. I further find that there was no habitual default on the part of the appellants. It was default on only one date.

7. I, therefore, set aside the impugned order as well as the order dated 29.9.1986 passed in Title Appeal No. 102 of 1982. The said appeal stands at readmitted for hearing and disposal on merits.

8. The parties are directed to appear before the Court below on 18.5.1998, on which date a firm date for hearing of the appeal may be fixed and the appeal be disposed of without granting unnecessary adjournments sought for by the parties.

9. In the result, this appeal is allowed, but without costs.