IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMOs No.208, 210, 211, 212 and 213 of 2008. Date of decision:20.03.2009. 1. CMPMO No.208 of 2008. Ram Chander …Petitioner Versus H.P.State Small Industries & Export Corpn. …Respondent 2. CMPMO No.210 of 2008. Hari Chand Morya …Petitioner Versus H.P.State Small Industries & Export Corpn. …Respondent 3. CMPMO No.211 of 2008. Joginder Morya …Petitioner Versus H.P.State Small Industries & Export Corpn. …Respondent 4. CMPMO No.212 of 2008. Rajinder Prashad …Petitioner Versus H.P.State Small Industries & Export Corpn. …Respondent 5. CMPMO No.213 of 2008. Joginder Prashad …Petitioner Versus H.P.State Small Industries & Export Corpn. …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioners:Ms.Kiran Lata Sharma, Advocate. For the Respondents:Mr.Ashok Sood, Advocate. Dev Darshan Sud,J. These petitions have been consolidated and disposed of by a common order preferred against the 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 order of the Divisional Commissioner passed on an application under Order 41 Rule 19 moved in each of the cases praying for restoration of the appeals preferred by each of the petitioners which were dismissed in default on 17.11.2005. The primary reason urged for restoration in the application(s) was that the dismissal was the result of non-appearance of counsel of the applicant(s) and no fault could be attributed to him/them. The order sheet shows that the case was called out thrice on 17.11.2005 but nobody appeared on behalf of the appellant(s) before the Divisional Commissioner. The application for restoration was accompanied by another application under Section 5 of the Limitation Act where again the primary reason for non-appearance was that the delay in moving application under Order 41 Rule 19 was that the counsel had not communicated with the petitioner(s). While dismissing the application, the Divisional Commissioner noted that the appellants or their counsel were not serious in prosecuting the appeal and not approaching the Court for a period of 2½ years. Reliance has also been placed on Order 41 Rule 19, sub-rule 4 read with Section 151 of the Code of Civil Procedure holding that non-appearance of pleader due to his pre-occupation in another Court etc. is not sufficient excuse either for adjournment or for non- appearance. The Commissioner holds:- 3 “(4). No Sufficient Cause:- The non- appearance of the pleader due to the engagement in another Court is not a sufficient cause, nor is an error of a pleader in noting a wrong date in his diary as the date of hearing of the appeal; nor is a neglect of an advocate for which no adequate excuse is put forward; nor is the fact that an adjournment of an appeal was sought on the ground that the better of the two vakils was absent from the station.” It is not clear as to from where this quotation has been taken, whether from a judgment or binding precedent of this Court or from the bare provisions of the Code. This is not a proper way of appreciating the entire case. It is by now well settled by a long catena of decisions that litigants cannot be made to suffer for negligence/fault of their counsel. True, it cannot be used as a ploy to prolong litigations on one pretext or the other. Reference in this behalf may be made to Rafiq and Another vs. Munshilal and Another, AIR 1981 SC 1400, Goswami Krishna Murarilal Sharma vs. Dhan Prakash and Others, (1981)4 SCC 574, Tahil Ram Issardas Sadarangani and Others vs. Ramchand Issardas Sadarangani and Another, AIR 1993 SC 1182 and Sushila Narahari and Others vs. Nandakumar and Another, (1996)5 SCC 529. 4 It is but expected that when cases are being disposed of, reference is made to the right precedent before it is applied to the facts of the case. In the facts and circumstances of the case, all these petitions are allowed. The orders dismissing the application for restoration of the appeal are quashed and set aside. This shall be subject to the condition that the petitioner in each petition shall pay Rs.1000/- as costs to the respondent on the first date of appearance before the Divisional Commissioner, which is fixed for 10.4.2009, who shall thereafter proceed with the matter in accordance with law. A further direction is issued that these cases shall be disposed of not later than 31.12.2009. Dasti copy on usual terms. March 20, 2009 (Dev Darshan Sud) (aks) Judge.