1. This Letters Patent Appeal has been preferred against an order of Cornish, J., refusing to restore S.A. No. 848 of 1932, which was dismissed under Order XLI, Rule 17, Civil Procedure Code, as the appellant's Counsel did not appear when the case was called. In support of the application a verified petition has been filed by the Counsel engaged in the case and it is there stated that at the time the second appeal came on before our learned brother, the Counsel was actually engaged in arguing a case before another Division Bench, that he did not make other arguments for the second appeal because he expected the case before the Division Bench to be over earlier but that to meet all contingencies he had asked a representative to be made to our learned brother if the case should be reached earlier, that he was actually engaged before another Bench and that he would be before Cornish, J., in a few minutes.
2. When the matter came on before us on a, previous occasion, a question had been raised by the office whether the appeal was competent without, leave granted by the Judge himself. Mr. Surayanarayana maintained that as this was not an order relating to the Appellate decree itself, no leave was necessary under the terms of Clause 15 of the Letters Patent. But as the point was not free from doubt, we preferred to allow the case to stand over to enable Mr. Suryanarayana to apply to Mr. Cornish. J., himself for leave. Leave has since been obtained.
3. We think it proper to refer here to the observations made by the learned Judge at the time that he granted leave because these observations make it clear that while it might be true that Mr. Suryanarayana had made proper arrangements for his difficulty being represented to the learned Judge, there was some mistake in carrying out these instructions so that the learned Judge was not properly informed of the exact situation. His observations leave little doubt in our mind that if only the matter had been properly placed before the learned Judge, this unfortunate situation would not have arisen.
4. The application was not opposed even before the learned Judge; and before us it has been very fairly stated, on behalf of the respondents that they do not oppose the appeal. In these circumstances, we have less difficulty in dealing with the matter than we should otherwise have. We would only point out that in dealing with applications of this kind, the Court has to consider the position of the party concerned rather than the conduct of the members of the bar, though it may sometimes be difficult to dissociate the one from the other. As regards the position of the party it was observed in Arunachala Aiyar v. Subramaniah 46 M. 60 : 68 Ind. Cas. 971 : (1922) M.W.N. 600 : 31 M.L.T. 257 : 16 L.W. 583 : 43 M.L.J. 632 : A.I.R. 1923 Mad. 63 that a litigant should not be deprived of hearing unless there has been something equivalent to misconduct or gross negligence on his part or something which cannot be set rightly his being ordered to pay costs; where the non-appearance is due to the default of the Counsel engaged in the case, a similar consideration will mutatis mutandis be applicable, when the Court has to decide where there was sufficient cause for the non-appearance o f the party or of his Counsel. This consideration is all the more weighty when dealing with cases of default in appearance before this Court, because it may sometimes happen that the party is not present here at all, having entrusted his case to Counsel here cf Ajai Verma v. Baldeo Prasad : AIR1930All217 . It will be unmerited hardship if the party's interest should be irreparably prejudiced by reason of every default on the part of the Counsel.
5. From the point of view of the duty of the members of the bar, we have no doubt, that every endeavour will be made to maintain, and if possible, improve upon the traditions of cordiality between the Bench and the bar and that no endeavour will be lacking on the part of the members of the bar to facilitate the disposal of work before the Court as far as possible. In this view we strongly commend to the profession the remarks made by Cornish. J., in his note. It is difficult to lay down any general rule as lo what will constitute 'sufficient cause' for non-appearance in cases of default of appearance by Counsel engaged in a case. The observations of Jai Lal, J., in Abdul Aziz v. Punjab National Bank, Ltd. 10 Lah. 570 at pp. 578 & 579 : 114 Ind. Cas. 76 : A.I.R. 1929 Lah. 96 seem to us, if we may say so, to lay down a safe guide in matters of this kind. With these remarks we allow the appeal and direct the restoration of Second Appeal No. 848 of 1932. There will be no order as to costs either in the Letters Patent Appeal or in the application before Cornish, J.