The court has ample power to condone the delay in filing an application for restoration of an appeal and it ought to exercise its judicial discretion in that regard in each case in favor of the appellant, bearing in mind all the relevant facts and circumstances, to meet the ends of justice.

P. D. Desai, C. J.—This case illustrates how a hyper technical approach to a case without regard to the realities of life and the primary consideration of doing substantial justice results in failure to exercise jurisdiction vested by law in the court and consequently causes miscarriage of justice.

2. An appeal preferred by the appellant herein in the District Court was dismissed for default on September 5, 19 s . An application for restoration of the appeal was filed on November 18, 1985. The application was filed beyond the prescribed period of limitation and there was a delay of about 44 days in the presentation of the application. The appellant stated in the application that the intimation with regard to the dismissal of the appeal was conveyed by his counsel under a letter, dated October 30, 1985 which reached him only on November 10, 1985, and that he had instituted the application soonest thereafter. The application was dismissed primarily on the ground that it was barred by limitation and that no sufficient cause for condoning the delay was made out/ The absence of the appellant and his counsel at the hearing of the appeal and the delayed presentation of the application for restoration were regarded as indicative of the fact that the appellant was not interested in prosecuting the appeal.The attempt on his part to seek restoration of the appeal was considered as a mere attempt to keep the litigation alive and thus an abuse of the process of the court.

3. The precise grounds which weighed with the Lower Appellate Court in taking the aforesaid view may be set-out in its own words : "I think it is no ground to condone the delay, because when the lawyer appears in the court, he appears on behalf of the party and the party is deemed to be present through his counsel. When the appeal was dismissed in default of the appearance of the party or his lawyer, it shall be deemed that the party has the notice about the dismissal of the appeal. Simply that the lawyer has not told the party about the dismissal of the appeal for about 2 months is no ground to restore the appeal, because it is a contract between the party and the lawyer and if the party has any grievance against the lawyer, he can proceed against the lawyer in accordance with law for the breach of contract between them and the delay cannot be condoned on that account.... The suit in between the parties was with regard to injunction simpliciter and since the party or his lawyer had not appeared on the date when the case was called time and again, it was presumed that the case being of minor nature, the appellant was not interested in prosecuting the case and/thus it was dismissed in default. The filing of the application for the restoration of the appeal after more than 2 months also shows that the appellant is not interested in the prosecution of the appeal, but has filed the application simply to keep the litigation alive which abuse of process is not allowed under the law."

4. Before examining the basis of the reasoning, it will be profitable to refer to the pertinent observations made in Rafiq and another v. Munshilal and another, AIR 1981 SC 1400, which have a direct bearing on the issue under consideration. The observations are to the following effect: "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 und 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 courts 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 effective