T. Vaiphei, C.J.—This case is now taken up by us in a Division Bench on the reference made by the learned Single Judge (one of us) in his order dated 29-8-2016 to answer the following question:

“Whether an engaged counsel (Advocate) himself/herself has the authority to prefer an application for restoration/re-admission of an appeal and/or condonation of delay, etc. where the ground is for the fault of the lawyer?”

2. The controversy arose on the following facts and circumstances:-

Guna Sindhu Choudhury, Karuna Sindhu Choudhury and Kripa Sindhu Choudhury, as plaintiffs, had instituted Title Suit No. 35 of 2005 before the learned Civil Judge, Junior Division, Kailasahar against the defendants i.e. the respondents herein seeking declaration and perpetual injunction in respect of the suit land. The suit was, however, dismissed by the trial court on 20-6-2006. The applicants thereupon challenged the dismissal of their suit by filing Title Appeal No. 36 of 2006 before the learned Additional District Judge, Kailasahar, but their appeal was dismissed by the order dated 23-4-2007. A second appeal being RSA No. 55 of 2007 was thereafter filed before this Court and the same was admitted for hearing. However, on 28-3-2014, when the appeal was called on for hearing, none appeared for the applicants whereupon the appeal was dismissed in default. As there was a delay of 457 days the applicants filed this application for condonation of delay.

3. Though in the cause title of the application, it is the applicants, whose names found a place, but the application is signed by Mrs. S. Deb (Gupta), who happened to be the lawyer of the applicants; she also signed the affidavit in support of the application for condonation of delay. In the grounds for condonation of delay, it was stated that on the date so fixed for hearing of the appeal, the counsel was out of State for the major surgery of her son and could not, therefore, represent the applicants. According to the applicants, their counsel came to know about the dismissal of their appeal only on 27-7-2015 when another L.A. Appeal between the same parties were listed for hearing whereupon their counsel filed the application for re-admission of the appeal on behalf of the applicants for condoning the delay.

4. The respondents opposed the application for condonation of the delay by filing their written objection. In opposing the application, it is stated by the respondents that the son of the learned counsel was discharged from the hospital before the date was fixed for hearing and that no document was filed by her to show that she was away from Agartala on the fateful day. It is also contended by the respondents that the counsel for the applicants is incompetent to file or present the application for condonation of delay as she is not a party to the case. This apparently led the applicant No. 1 to file a supplementary affidavit on 15-2-2016 supporting the petition filed on their behalf by their counsel. The applicant No. 1 again filed another affidavit on 6-4-2016 said to be a better statement wherein it is stated that the applicant No. 2 died on 31-3-2009 leaving behind no other legal heir. Another plaintiff, namely, Kripa Sindhu Choudhury had expired on 28-10-2007 leaving behind his wife, namely, Radha Rani Choudhury, who is not inclined to pursue this appeal.

5. Mrs. S. Deb Gupta, the learned counsel for the applicants and who filed the application for condonation of delay, referring to the decision of the learned Single Judge of this Court in Binata Das & ors v. Panchadeep Travels and ors., (2016) 1 TLR 968, contends that for re-admitting an appeal, which has been dismissed due to the fault of the conducting lawyer, it should be this lawyer, who should be competent person to file the application. According to her, it is the lawyer alone who knows the real facts and circumstances leading to the dismissal of the appeal and not the litigant concerned, who do not normally come to Court and en