SAO No.26 of 2004 - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** SAO No.26 of 2004 DATE OF DECISION: 29.01.2009 **** Harbans Singh . . . . Appellant VS. Sukhchain Singh and another . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Arihant Jain, Advocate for the appellant. Mr.S.K. Arora, Advocate for the respondents. **** RAKESH KUMAR JAIN J.(ORAL) This appeal is directed against the order of the Additional District Judge, Sangrur, dated 6.1.2003 and 7.11.2003, whereby the appeal filed by the appellant against the judgment and decree of the Trial Court dated 21.2.2002 was dismissed for non- prosecution and his application filed under Order 41 Rule 19 CPC for readmission of appeal along with an application for condonation of delay filed under Section 5 of the Limitation Act was dismissed. Learned counsel for the appellant submits that the appeal was dismissed for non-prosecution on 6.1.2003 as his counsel did not appear and when he came to know about this fact on 28.6.2003, immediately after collecting the relevant document, SAO No.26 of 2004 - 2 - application for restoration of the appeal and application for condonation of delay in filing of the application for restoration of appeal was filed on 16.7.2003. He further submits that he is an illiterate villager and had believed his advocate who assured him that since it is an appeal, therefore, he is not required to come present on each and every date, as his evidence etc. is not going to be recorded. Therefore, he remained supremely confident on the assurance given by the Advocate and did not appear when the case was called on 6.1.2003. However, on that date, his counsel did not appear, as a result of which, appeal was dismissed for non- prosecution although the appeal was likely to succeed on merits. Learned counsel for the appellant relies upon a decision of the Supreme Court in the case of “Rafiq and another vs. Munshilal and another” AIR 1981 S.C. 1400, in this case appeal filed by the appellant was disposed of in the absence of his counsel, so also his application for recalling of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power as expected of him should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. In respect of condonation of delay, learned counsel for the appellant relies upon a decision of the Supreme Court in the case of “Collector, Land Acquisition, Anantnag and another vs. Mst.Katiji and others” AIR 1987 SC 1353, wherein supreme Court has held that no litigant would be benefited by lodging his claim late. SAO No.26 of 2004 - 3 - Keeping in view, the totality of circumstances, I am of the view that the order passed by learned Court below dated 6.1.2003 and 7.11.2003 respectively are unsustainable and are thus set aside. The matter is remanded back to the learned Appellate Court for deciding the appeal on merits. The appeal is, however, allowed subject to payment of Rs.5000/- as costs to be borne by the appellant and shall be paid to the respondent. (RAKESH KUMAR JAIN) January 29, 2009 JUDGE vivek