Chittatosh Mookerjee, J.
1. Being aggrieved by the order of the learned Additional District Judge, 10th Court. Alipore dated the 18th Nov. 1981 dismissing its application for condonation of delay and for setting aside the order dated 7th July, 1981 by which the said court had dismissed .Title Appeal No. 731 of 1979 for default, the Oil & Natural Gas Commission has preferred this First Miscellaneous Appeal and the Re-visional Application under Section 115 of the Code in the alternative.
2. The only point is whether or not the appellant Corporation was prevented by sufficient cause from appearing before the learned Additional District Judge, 10th Court, Alipore on 7th July, 1981 when the aforesaid title appeal preferred by it was called for hearing and dismissed for default. The appellant Corporation made its applications for re-admission of the said appeal on 30th of Oct. 1981, i.e., more than 30 days from the date on which the said appeal had been dismissed for default, therefore, the appellant Corporation was also bound to establish that it had been prevented by sufficient cause from making the said application within the prescribed period of limitation and that the delay ought to be condoned under Section 5 of the Limitation Act, 1963.
3. The present case has a chequered history. On 31st May, 1979 the learned Subordinate Judge, 1st Court, Alipore had decreed Title Suit No. 17 of 1971 brought by the plaintiff-respondent, Tridibnath Sanyal. Being aggrieved thereby, the appellant Corporation had presented the aforesaid Title Appeal No. 731 of 1979. The learned Additional District Judge, 7th Court, Alipore had dismissed the said title appeal on the preliminary ground of maintainability. On 19th Feb. 1981 Anil Kumar Sen and B. C. Chakraborty, JJ., by their judgment and order had disposed of the appeal and also the revisional application of the appellant Corporation and had set aside the order of dismissal of Title Appeal No. 731 of 1979 and had remanded the case for fresh disposal by the learned District Judge or by any other learned Additional District Judge (except the learned Additional District Judge. 7th Court) to whom the appeal might be transferred by the learned District Judge. An Assistant Registrar of this Court by Memo No. 2416-S dated 7th April, 1981 had forwarded a copy of this Court's order dated 9th Feb. 1981 along with the entire lower court records to the Additional District Judge, 7th Court, Alipore, 24 Parganas for information and necessary action. The learned Additional District Judge, 7th Court, Alipore had endorsed on the reverse of the said Memo, dated 7th April 1981 of the Assistant Registrar, his order No. 282 dated 2nd June, 1981 the receipt of this Court's order in the lower court and had directed that the same be forwarded to the learned District Judge, 24 Parganas for information and for taking necessary action as directed by this Court. The learned District Judge by his Order No. 26 dated 6-6-1981 recorded that the records had been received with the copy of the High Court judgment whereby the appeal had been remanded for rehearing by a Judge other than the Additional District Judge, 7th Court, Alipore. The learned District Judge by the same order transferred the appeal to the 10th Court of the Additional District Judge Alipore for disposal. The learned Additional District Judge, 10th Court, Alipore by his Order No. 47 dated 16th June, 1981 recorded that the records had been received on transfer for disposal. The learned Additional District Judge fixed 7th July, 1981 for preemptory hearing. On 7th July, 1981 the learned Additional District Judge, 10th Court. Alipore passed the following order:--
'Parties have taken no steps and none found present in Court on repeated calls. It is now 11.35 A.M. Hence Ordered. That the appeal be and the same is dismissed for default. Memo of appeal is sufficiently stamped.'
4. The appellant Corporation in their applications for re-admission of the appeal had, inter alia, staled that its authorised representative, Sri R. S. Pradhan, had been regularly enquiring from Sri Raghunath Chatterjee, advocate on record, on behalf of the petitioner, as to the date of the hearing of the title appeal after remand. But Sri Chatterjee had told that he had not received any notice from the court as to whether the appeal had been transferred to any other court in accordance with the direction passed by this Court and also that he had otherwise no knowledge of the date of the hearing of the appeal. The appellant Corporation claimed that on 23rd Oct. 1981 when a letter was received from Sri Tridib Nath Sanyal for the first time, it had come to know that by order dated 7th July, 1981, the aforesaid title appeal had been dismissed for default by the Additional District Judge, 10th Court, Alipore. At the time of the hearing of the case, the appellant Corporation had examined as witnesses the said R. S. Pradhan, who was the Superintendent (Personnel), Administration of the Corporation and also Sri Raghunath Chatterjee, its advocate on record we are unable to accept the submission of Mr. Dasgupta, learned advocate for the respondent, that the said R. S. Pradhan was not a competent witness on the ground that Sri Gopeswar Banerjee, Project Manager of the Corporation, who had affirmed an affidavit in support of its application under Order 41, Rule 19 of the Code was not produced as a witness. The name of said R. S. Pradhan was mentioned in paragraph (7) of the said application as the person, who had been making enquiries from the Corporation's lawyer on record in the title appeal and he had also affirmed an affidavit in support of the appellant's case for re-admission of the appeal. In the circumstances, we hold that R. S. Pradhan was competent to depose as a witness and no adverse presumption would be drawn for not examining the Project Manager of the Corporation. We have no reason to disbelieve that Sri R. S. Pradhan. PW 1, had been making enquiries about the case from Sri Raghunath Chatterjee, advocate of the appellant Corporation because Sri Chatterjee, P. W. 2, has corroborated the above fact. Said witness had also stated in his examination-in-chief that he did not receive any notice of transfer of the case either to the District Judge's court or to the 10th Court of the Additional District Judge, Alipore. He also testified that he was not aware of the date fixed for hearing. There is also no reason to disbelieve the statement of Sri Chatterjee, P. W. 2, that Mr. Pradhan of the petitioner Corporation, used to come frequently to make enquiries about the case. He had come to Sri Chatterjee on 26-9-81 but Sri Chatterjee could not give him any information. Therefore, there was no lack of diligence on the part of the petitioner Corporation or its employee, who had been looking after the matter, because frequently enquiries about the case were made from the Corporation's learned advocate on record.
5. On 7th July, 1981 the title in question was dismissed for default because the appellant Corporation's learned advocate. Sri Chatterjee, P. W. 2, had failed to inform the appellant and had also failed to appear when the appeal was called for hearing and dismissed for default. Therefore, the real question is whether or not Sri Chatterjee, the appellant's learned advocate, had acted bona fide and in good faith and whether his evidence given in the court below ought to be believed. We have given our anxious consideration to the matter and we hold that the bona fide and the good faith on the part of the appellant. Corporation's lawyer was unquestionable. Although every negligence or mistake on the part of an advocate may not constitute sufficient cause for restoration or re-admission of an appeal dismissed for default, the court is generally inclined to condone the mistakes of the counsel made bona fide and in good faith. After all, when a party engages a competent lawyer, he ought not to be made to suffer for any bona fide mistake on the part of his lawyer unless the default was willful and was deliberately made with ulterior motive for example in order to cause some undue gain or advantage to the defaulting party. While considering whether the delay in filing an appeal could be condoned on the ground of the mistake of the appellant's counsel, the Supreme Court in Matadin v. Narayanan : 2SCR90 , had inter alia observed that the law is settled that mistake of counsel may in certain circumstances be taken into account in condoning the delay although there is no general proposition that mistake of counsel by itself is always a question whether mistake was bona fide or was merely advice (devise) to cover an ulterior purpose such as laches on the part of the litigant or an attempt in save limitation in an underhand way, (vide paragraph 6). In this connection, see the observations of this Court in Biswanath v. Kishori Mohan Pal, : AIR1956Cal1 . Our attention has been also drawn to the recent decision of the Supreme Court in Rafiq v. Munshilal : 3SCR509 , where the Supreme Court allowed restoration of an appeal before the Allahabad High Court which had been dismissed for default of the appellant's lawyer. Their Lordships, inter alia, observed 'We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted'.
6. The learned Additional District Judge has rejected the appellant's prayer for re-admission of the appeal on the ground that the petitioner was aware of the order of the High Court directing the District Judge to either himself dispose of the appeal or to transfer the same to any other learned Additional District Judge except the learned Additional District Judge, 7th Court, and therefore, Mr. Chatterjee, P. W. 2, was not justified in claiming that he had made enquiries in the 7th Court of the learned Addl. Dist, Judge and not in the District Judge's Court. While making these observations and drawing an adverse presumption against the appellant, the learned Additional District Judge has overlooked that an Assistant Registrar of this Court by his aforesaid Memo No. 2416-S dated 5th of April, 1981 had sent down this Court's order dated 19th Feb., 1981 along with the entire lower court records to the learned Additional District Judge, 7th Court, Alipore and not directly to the court of learned District Judge. 24 Parganas. We have already mentioned that after the receipt of this Court's order and the records, the learned Additional District Judge, 7th Court, Alipore had endorsed his Order No. 182 dated 2nd June. 1981 on the reverse side of the said Memo of the Assistant Registrar, High Court and not in the order-sheet of the appeal. After the records were forwarded to the learned District Judge, 24 Parganas, the learned District Judge had transferred the appeal to the 10th Court of the learned Additional District Judge as already stated. Before recording the aforesaid orders neither the learned Additional District Judge, 7th Court nor the learned District Judge had directed that the parties or their learned advocates be informed.
7. Mr. Mitra has referred to Rule 370 (2) of the Civil Rules and Orders, Vol. 1, page 126, which provides that orders directing anything to be done by parties or their pleaders shall be signed then and there by the parties or their pleaders. The Note No. 1 to the said Rule 370 (2) provides 'while every endeavour shall be made to get the signature of the pleaders concerned to important matter, their attention is drawn to the fact that it is not the duty of the officers of the Court to call upon the pleaders to sign the orders issued or to inform them of the nature of the orders passed. It is for the pleaders to be present at the proceedings to make themselves acquainted with the orders passed' (vide Robert Watson v. Ambika Dassi, (1900) 4 Cal WN 237 at p. 238). Thus Rule 370 (2) of the Civil Rules and, Orders does not provide that in every case the court should inform the parties or their lawyers about important orders passed by it but at the same time when after remand a case is set down before the Court, it would be prudent to inform at least the lawyers who had represented the parties in the said court before such remand. This may assist the court in expeditiously disposing of the case after giving opportunities to the parties and also might prevent a non-appearing party from later raising a plea that it had been prevented by sufficient cause from appearing at the hearing of the matter.
8. In the instant case there is no material on record to indicate whether or not the order of the teamed Additional District Judge transferring the case to the 10th Court of the Additional District Judge had been communicated to the local Bar Library. In any event we are satisfied that Sri Chatterjee, the appellant's learned advocate, was not aware of the aforesaid transfer order made after remand. The evidence in the present case was one sided. The respondent did not adduce any oral evidence. He had no doubt suggested during cross-examination of Sri Chatterjee, P.W. 2, that P.W. 2 did not make any queries as claimed by him. P.W. 2 had also denied the suggestion that on 7th of July, 1981 the respondent had come to him with a petition with a request to accept it but Sri Chatterjee refused on the plea that he had no connection with his client. P.W. 2 also did not remember if the respondent had informed him of the order of dismissal dated 7th of July, 1981. The respondent himself did not testify that he had met Sri Chatterjee, P.W. 2, on 7th of July, 1981 or that he had verbally informed him about the order of dismissal of appeal on 7th of July, 1981. He also did not accept any document containing endorsement by Sri Chatterjee made after remand stating that he had no instruction. Any writing of Sri Chatterjee made before the remand by the Court would be irrelevant. Order sheet of the appeal shows that on 7th of July, 1981 both parties were absent. Therefore, when there was no corroboration from the records, we cannot believe the respondent's claim made in his objection petition that on 7th of July, 1981, he had waited outside the court to see whether the appellant would appear and press the title appeal. Evidence given on the appellant's side about the cause of non-appearance on behalf of the appellant on 7th of April 1981 remains uncontradicted by any contrary oral or documentary evidence.
9. Mr. Dasgupta is not right in his submission that the P.W. 2 had admitted in his cross-examination that the records of the instant appeal were shown to him after it was transmitted by the High Court. P.W. 2 was obviously referring to the records of some other cases when he suggested 'the records were shown to me only on same (sic some) occasions after it was transmitted by the High Court'. P.W. 2 was obviously referring to administrative order of transfer of appeal by the District Judge to the 10th Court of the Additional District Judge, Alipore when he had stated that it was not possible for him to look to notices hung in all courts,
10. Thus, we conclude that the appellant has satisfactorily established neither its officer-in-charge nor its advocate on record Sri R. Chatterjee, who are aware of the orders made in the case after the records were received back after remand by the High Court and both the appellant and its lawyer had acted bona fide and the same constituted sufficient cause for setting aside the ex parte order of dismissal of the appeal and for readmitting the same under Order 41, Rule 19 of the Code. In the above view, it is necessary for us to consider whether or not Rule 26A of O_ 41 applied to the instant case. Under the said Rule 26A (which wag inserted by the Civil Procedure (Amendment) Act, 1976 after the remand of a case under Rule 23, 23A or under Rule 25), the Appellate Court shall fix the date for appearance of the parties before the Court from whose decree the appeal was preferred for the purpose of receiving the directions of that court as to further proceedings in the suit. In this case, the case was remitted back and not remanded under the aforesaid Rules. Therefore, Rule 26A of Order 41 was in terms not attracted.
11. It is not also necessary to decide whether or not the order complained of would be appealable under Order 43, Rule 1 (t) of the Code. The Court below heard and disposed of on merits the appellant's applications under Order 41, Rule 19 of the Code and also its applications under Section 151 of the Code and under Section 5 of the Limitation Act. The appellant has preferred both an appeal and an alternative application under Section 115 of the Code.
12. We accordingly dispose of the appeal and the alternative application in the following terms:--
We set aside the order complained of and restore the Title Appeal No. 731 of 1981 on condition within two months from this day the appellant deposits in the lower Appellate Court a sum of Rs. 3,000 in cash and also furnishes security by way of bank guarantee for a sum of Rs. 50,000. In case of non-compliance with this order, this appeal and the application shall stand dismissed and also the appellant's prayer for restoration of the title appeal shall stand rejected. We have made this conditional order in view of the fact that the proceedings have been delayed and also to enable the respondent to recover his arrear emoluments in the event that he becomes ultimately successful in the case. We, however, express no opinion on the merits of the cases of the parties in the aforesaid title appeal. Let the records be sent down by Special Messenger to the court below if the cost be put in by either of the parties.
Let the appeal be expeditiously disposed of. The appellant will pay the costs of this appeal and the revisional application assessed at 10 gold mohurs to the learned Advocate for the respondents within two weeks from date.
We direct that the interim order made in this matter will continue for a further period of two months with liberty to both parties to make appropriate submission about the interim order before the lower Appellate Court. We also record that the respondents do not admit any of the allegations made either in the revisional application or in any other interlocutory application and affidavit filed on behalf of the appellant. No separate order is necessary in the Rule. The Rule is disposed of, There will be no order as to costs.
13. I agree.