The primary legal point established is that the responsibility for compliance with court orders lies with the counsel, and the litigant cannot be held accountable for the counsel's negligence.

ORDER : – With the consent of the parties, the matter is finally heard on IA No. 5258/2017 which is an application under section 5 of the Limitation Act, 1963 for condonation of delay in filing the restoration application as well as on the main application also.

2. This application under Order 41, Rule 19 read with section 151 of the Civil Procedure Code has been filed for restoration of First Appeal No. 74/1998 which stands dismissed in view of peremptory order dated 22-2-2007.

3. Being aggrieved by judgment and decree dated 16-1-1996 passed in Civil Suit No. 07-A/1995 by the Additional District Judge, Manavar, District Dhar, the appellants/applicants had preferred FA No. 74/1998 before this Court. For the purpose of prosecuting the appeal on their behalf applicants had engaged Shri Sheel Kumar Nigam and Saket Nigam, Advocates. By order dated 3-7-2006 the appeal was admitted for final hearing. At that time Shri A. K. Mishra was the counsel for the applicants who thereafter took up in Government service. The appeal was then listed for default on the part of the applicants in not paying adequate process fee for service of notices upon the non-applicants. By order dated 22-2-2007, the applicants were granted two weeks time to pay the process fee stipulating that in case of failure to do so the appeal shall stand dismissed without further reference to the Court. Since the order dated 22-2-2007 was not complied with within the period stipulated therein, the appeal stands dismissed.

4. As per the applicants they were not intimated by their counsel that process fee has to be paid as per order dated 22-2-2007. The process fee was also not paid by their counsel. On 22-8-2017 when the applicants came to Indore for seeking information as regards their case and searched for their counsel they acquired knowledge upon making necessary search that the appeal stands dismissed for non-compliance of order dated 22-2-2007. Prior to that they were never informed of the proceedings of the case by their counsel. Thereafter steps have immediately been taken and the attached application for restoration has been filed.

5. Reliance has been placed on the decision of Hon’ble Apex Court in the matter of Perumon Bhagvathy Devaswom Perinadu Village vs. Bhargavi Amma (dead) by LRs and others, reported in (2008) 8 SCC 321, and of the decisions of this Court in Ulla @ Hulla vs. Ramkishore and others, reported in 2003(4) MPHT 10 (NOC) and Anil Kumar vs. Dwarika Bai and others, reported in 2000(2) MPHT 3 (NOC).

6. Reply has been filed on behalf of the non-applicants to the application for condonation of delay as well as to the main application. It is submitted that applicants have not demonstrated as to why only after a lapse of ten years and five months they all of a sudden came to Indore for inquiring about the matter. The very fact that they did not contact their counsel for such a long time shows that they were never vigilant about their case and were rather lethargic in conducting the same. As per the Vakalat Nama executed by the applicants in favour of their counsel they were required to keep themselves present on each date of hearing and were to seek information about progress of the case if they failed to remain present. The consequences of failure were to be upon them. The applicants have however not done so. It is further submitted that though allegations have been leveled by the applicants against their then engaged counsel but there is no proof that they have taken any steps against him which shows that their story is made up. Reliance has been placed on the decision of the Hon’ble Apex Court in the matter of Shanti Devi and others vs. Kaushaliya Devi, reported in (2016) 16 SCC 565 and Brijesh Kumar and others vs. State of Haryana and others, reported in (2014) 11 SCC 351 to contend that delay cannot be condoned on insufficient grounds and if there is abuse of process of law or if there is lack of bona fides or there is in-action or negligence.

7.