MC 2012/2009 BEFORE HON’BLE MR. JUSTICE A.C. UPADHYAY Mr. S. Dutta, learned counsel for the petitioner/appellant submits that in terms of the order dated 19.10.2011, passed by this Court, the notice upon the respon dent Nos.6 & 7, were duly published in the two (2) National newspapers, one in E nglish and one in Hindi having wide circulation in the locality indicated in the aforesaid order.. The learned counsel has furnished the newspapers in which the notices were published. In view of the above, service upon respondent Nos.6 and 7 is hereby deemed to b e effected. Despite service of notice, the respondent Nos.6 and 7 have not entered appearanc e. The case is ready for hearing as regards service. I have heard Mr. S. Dutta, learned counsel appearing for the petitioner and Ms. P. Barman, learned counsel appearing for the remaining respondents, on the appli cation under Section 5 of the Limitation Act, 1963, condonation of delay of 1103 days, in filing the connected appeal. Learned counsel for the petitioner has pointed out that after award of compensat ion was made in this case by the learned Member, MACT, Barpeta in MAC Case No.14 8 of 2000, instead of preferring an appeal the petitioner had filed a writ petit ion being No.521 of 2003 and thereafter, diligently pursued the writ petition be fore this Court. However, on 20.7.2007, the writ petition was dismissed with lib erty to the petitioner to prefer an appeal against the judgment and award dated 11.9.2002. After the order was conveyed, the petitioner-appellant, entrusted Mr. S. Dutta, learned counsel on 16.10.2007, to prefer appeal against the award. Ho wever, Mr. Dutta, in turn entrusted the task of preparing the memo of appeal to junior counsel, Mr. D. Baruah attached with him. After the appeal was made ready , Mr. Baruah, learned counsel misplaced some relevant records relating to the ca se, for which appeal could not be filed in time. Mr. Dutta, learned counsel has submitted that it was due to the fault on the part of the counsel, there was del ay in preferring the connected appeal. Learned counsel for the appellant, submitted that the parties can not be made to suffer for the re-miss or fault on the part of the counsel in taking appropriat e steps in time. Mr. Dutta, learned counsel has placed reliance on the decision of the Supreme Co urt reported in AIR 1981 SC 1400 (Rafiq and another Vs. Munshilal and another), wherein it has been observed in para 3 - 3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligatio n of the parties is to select his advocate, brief him, pay the fees demanded by him and 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 court’s procedure. After engaging a lawyer, the party may remain supremely conf ident that the lawyer will look after his interest. At the time of the hearing o f 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 effec tively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with reg ard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the la wyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the i naction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberate ly or intentionally. We have no material for ascertaining that aspect of the mat ter. We say nothing more on that aspect of the matter. However, we cannot be a p arty to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Cou rt both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. Mr. Dutta has also relied on the decision of the Supreme Court reported in (1998 ) 7 SCC 123 (N. Balakrishnan Vs. M. Krishnamurthy ), wherein it has been observe d that - It is axiomatic that condonation of delay is a matter of discretion of the cour t Section 5 of the Limitation Act does not say that such discretion can be exerc ised. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a w ant of acceptable explanation whereas in certain other cases, delay of a very lo ng range can be condoned as the explanation thereof is satisfactory. However, Ms. Barman, learned counsel for the respondent has submitted that if th e certified copy of the award is misplaced by the learned counsel as contended, it could have been obtained from Court easily. However, it reveals that the cert ified copy and the relevant records was not obtained by the counsel and it was a default on the part of the counsel. The negligence of the learned counsel may not be condonable, but should the part y made to suffer for the sheer negligence of his counsel? On perusal of the materials on records, it appears that it was mainly due to the re-miss on the part of the learned counsel for the petitioner-appellant, the co nnected appeal could not be filed in time by the petitioner-appellant. Therefore , in terms of the above discussion, this Court is of the considered opinion that failure to file the appeal in time by the appellant in the facts and circumstan ces are reasonable and justified. Considering the facts and circumstances discussed above, I find that the petitio ner has satisfactorily explained the delay in preferring the connected appeal. Consequently, the prayer for condonation of delay of 1103 days is hereby allowed and the delay is hereby condoned. The Misc. Case stands disposed of.