JUDGMENT H.N. Agarwal, Member. - This is an application for restoration of second appeal no. 44 of 1975-76 which was dismissed in default on 15-11-1977 by a learned Member Sri A.K. Sharma who has since retired. 2. I have heard the learned counsel for the parties and have gone through the record. 3. The restoration application has been moved on 8.2.1978. The ground taken in the application is that due to the mistake of the counsel as well as of the clerk of the counsel, the appeal could not be noted in the diary of the counsel and, therefore, on 15.11.1977 the counsel could not reach the Court. On 31.1.1978 the counsel got the notice from the Court that the appeal had been dismissed in default and then the counsel searched his diary and detected the mistake. Thus the appeal has been dismissed in default not due to the fault of the client but due to the bona fide mistake of the counsel. 4. The record show that the second appeal had not been admitted and was only fixed for hearing on admission. As the judgments of the courts below were conflicting, there is every chance of the second appeal being admitted. The appellant obviously could have no motive in getting the appeal dismissed in default. The bona fide mistake of the counsel for the appellant in not appearing on 15.11.1977 is thus established. The respondent contends that the appellant and his counsel deliberately absented themselves on 15.11.1977 only to prolong the litigation and to harass the respondent, but this plea has no substance. There is nothing at all on record to show that the respondents have been harassed in any manner. As regards the question of prolonging the litigation, the appellant is naturally entitled to seek justice where the courts below have recorded conflicting judgment. He has not reason to accepted the first appellate court's judgment as the last word on the subject. A bona fide mistake of the counsel which is neither of the counsel himself or due to connivance of his client nor any criminal negligence is a good ground for restoration. Where however gross and criminal negligence either of the counsel or his client is established restoration cannot be allowed. 5. I, therefore, allow the application and recall the order of dismissal of the appeal in default. Where however gross and criminal negligence either of the counsel or his client is established restoration cannot be allowed. 5. I, therefore, allow the application and recall the order of dismissal of the appeal in default. Let the second appeal be fixed for admission on 25th February, 1980.