JUDGMENT N.N. Mithal, J. - This first appeal from order is directed against the order of the court below by which the appellants application for setting aside the dismissal of the appeal in default has been rejected. The plaintiff appellant had filed a suit for injunction against the respondent restraining it from realising certain amount by way of tax, the validity of which was questioned on some legal grounds. The suit was dismissed by the trial court and in appeal the plaintiff was granted temporary injunction on condition that he should deposit Rs. 1,500 past amount of tax and should furnish the security of Rs. 5,000 for future tax. The appeal was fixed for hearing on 26-4-1975, but on that date the plaintiffs counsel made an application for adjournment which was allowed and 19-5-75, was fixed for hearing of the appeal. On this date, the appeal was called out in the pre-launch period but one Bishan Kumar appeared and stated that he was not ready with the appeal which is to be argued by his senior. The court below adjourned the hearing to the post lunch period specifically mentioning that it would be taken up after lunch. In tire after lunch period, several times the appeal was called out and on each occasion a Pairokar appeared and requested that he was going to call his counsel. On the last occasion, the appeal was called cut at 3.15 p.m. but at that time even the Poirokar did net appear. The counsel also remained absent and, therefore, the appeal was dismissed. An application for setting aside the order of dismissal of the appeal for default was moved on 31st May, 79 and this application has been dismissed by the court below by the impugned order dated 30-8-79. In its order, the court has observed that Bishan Kumar who had appeared in the pre-lunch period was an advocate and also happened to be the son of the appellant. On the previous date also, adjournment was allowed due to some personal difficulty of the Counsel. The court has further observed that: the appellant had been negligent throughout in the conduct of the case and that he perhaps wanted to delay it on one pretext or the other. On these grounds, the court below did not find any sufficient ground .or restoring the appeal and, consequently, the application has been rejected. 2. The court has further observed that: the appellant had been negligent throughout in the conduct of the case and that he perhaps wanted to delay it on one pretext or the other. On these grounds, the court below did not find any sufficient ground .or restoring the appeal and, consequently, the application has been rejected. 2. I Have heard counsel for the parties and I have alto been taken through the record. It appears that the appeal was not an old one and that on four occasions in all adjournment of the appeal was sought twice by the appellants counsel on his personal ground and twice, by the respondents counsel on his personal ground. 19th May, 79 was 6th date on which hearing of the appeal was fixed. The appellant could hot alto fie said to be taking undue advantage of any order of the court, because the temporary injunction was granted to him only on condition that Rs. 5000 be deposited in cash and adequate security to the extent of Rs. 5,000 could be furnished. From these faces, therefore, it cannot be said that the appellant, was trying to take a undue advantage or trying to delay the proceedings in appeal. 3. Sri Agarwal appearing for the appellant has not justified the action of the counsel in the court below and I think rightly so. The only submitted that since there was no fault on the part of the plaintiff and he had done all to see that the appeal was properly looked after by sending a Pairokar to the court and appointing a lawyer to argue his case, In these circumstances it is argued, that he could not be held to be negligent in any manner. The matter is not so simple as it is made out to be. I cannot let the attitude of the counsel go unnoticed. Instances of this type are becoming common and it is high time that this court should take notice of this not too infrequent lapse on the part of the counsel. What the court is supposed to do in such circumstances ? Is the court helpless if the counsel for a party refuses to appear in the case whom it is being repeatedly called? Can the court not dismiss it ? What the court is supposed to do in such circumstances ? Is the court helpless if the counsel for a party refuses to appear in the case whom it is being repeatedly called? Can the court not dismiss it ? and when the court dismissed the appeal for default in such circumstances, does it become necessary 'or the court to restore the.some merely because the appellant himself cannot be said to be negligent and it is found, it was. his counsel who was not performing his duty as an advocate by failing to appear in Court ? After all what should the court do 4. In answer to ail these questions, it must be said that the court is not at all powers in these masters and can certainly dismiss.the appeal when neither the party nor his counsel is present when appeal is called out for hearing.However, at the time of considering the question of sufficient cause for the not appearance, the court must distinguish between the negligence of the party and negligence attributable to the counsel. A number of cases have been ti ed before me in which it has been held that if the party himself is not guilty of latches of negligence, the court should be liberal in allowing the application for restoration." All this has been laid down by the various High Courts in view of pious hope that counsel will perform their duty with the sense of responsibility that it deserves and not take it in a casual manner. A heavy duty is cast on the court to exercise its authority in hearing and deciding a case in a judicious manner. There is, however, a corresponding duty cast on the counsel also who form an equally important wing to the judicial system in this country. No judicial system can work if either the court or the advocates do not perform their respective duties in a proper manner in the conduct of a case. If once a counsel has been engaged by any party, it becomes his bounden duty to prepare the case and argue it when the case is called out for hearing. He cannot avoid or escape the responsibility to represent him in court when once the client has entrusted the brief to him. If once a counsel has been engaged by any party, it becomes his bounden duty to prepare the case and argue it when the case is called out for hearing. He cannot avoid or escape the responsibility to represent him in court when once the client has entrusted the brief to him. If he has some difficulty he must approach the court and it may try to accommodate him to the extent possible but the manner in which the counsel for the appellant has conducted himself in this particular case leaves much to be desired and this kind of attitude on the par of any member of this noble profession cannot but be disapproved, if not condemned. 5. Reliance has been placed on a case reported in 63 Indian Appeals 2, where their Lordships of the Privy Council observed at page 22 of the report: - "Every litigant has the right to have his case heard and disposed, of but that right must not be abused even though the defendant, for reasons his own, is not anxious to complain of the plaintiffs delay. But the Court is not entitled to deprive the litigant of his right, except on clearly ascertained grounds, and to the exclusion of grounds which rest only on suspicion." 6. Learned counsel drew my attention to the following portion of the observations made in Rafiq and another v. Munshi Lal another, 1981 ALJ 704 by the Supreme Court : "The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation 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 Courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done every thing in his power to effectively participate in the proceedings can rest assured that he is neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal for is he to act as a watch dog of the advocate that the latter appears in the matter when it is listed." The Supreme Court after condemning the conduct of the Advocate who appeared for the appellant in the High Court had this to say : - "The problem that agitates us is whether it is proper that the party should suffer for the in action, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted." 7. The aforesaid decision though apparently supports the cause taken up by Sri Agarwal but. the circumstances there, were entirely different. In the High Court, it is not necessary for a party to be present after the case has been entrusted to this Advocate and as rightly observed by the Supreme Court, the presence of a "party is not at all necessary there. Same, however, cannot be said about the procedure in the trial court where the presence of a party is essential and as a practice is always insisted upon by the advocates, The view expressed by the Supreme Court in this case, therefore, cannot be helpful in the decision of the present case. 8. Same, however, cannot be said about the procedure in the trial court where the presence of a party is essential and as a practice is always insisted upon by the advocates, The view expressed by the Supreme Court in this case, therefore, cannot be helpful in the decision of the present case. 8. Reliance has also been placed on a Division Bench decisions of this Court in Anurush Singh v. Roopa Kunwar and others, AIR 1925 All 601 where Walsh, J. observed as under: "It is the business of the Court to decide the rights of the parties and not to deprive them of their rights by the mere exercise of discipline but to use their discipline for the purposes of visiting neglect upon them and removing the results of such neglect. The learned Judge rightly says that at times parties will stay away when they are not ready and then come back with a cook and bull story to apply for restoration. In other words that they are acting mala fide. He has not been able to find that was so." Even if that be so, it will be necessary to examine the facts in this case in order to arrive at a decision as to whether the plaintiff had shown any sufficient for his non-appearance. 9. Lastly Sri Agarwal draw my attention to a Division Bench decision of Hyderabad High court in Bansi Lal and others v. Makandas, AIR 1952 Hyd 155. In that case, an advocate appearing for the appellant remained absent when the appeal was called on for hearing and the appeal was, therefore, dismissed for default. An application for restoration was filed alleging that the appellants had been ill arid were not able to attend the case and was relying upon their counsel to appear and argue the same. It was further stated that the appellants counsel could not appear as he had temporarily left the practice in order to join some agitation. This application was, however, dismissed for default as the applicant failed to take necessary steps for service of notice on the respondents another application was made to restore the restoration application which too was dismissed as the counsel was busy elsewhere and in this manner a fourth application had to be moved. This application was, however, dismissed for default as the applicant failed to take necessary steps for service of notice on the respondents another application was made to restore the restoration application which too was dismissed as the counsel was busy elsewhere and in this manner a fourth application had to be moved. It was under these circumstances that the Court had these observations to make:- "We must strongly depreciate the practice of an Advocate keeping himself busy in the office and other pieces without making arrangements for his being informed when his case is put up. This conduct certainly amounts to negligence on the part of the advocate and as regards the conduct of the advocate of the petitioners, we will be making our Observations later in this order but we feel that as fer as possible the sin of an advocate should not be allowed to visit on the party. Therefrom, without the rights of the party being effected pre-judicially, we think that the interest of justice would be made, if we mulct the defendant petitioner in costs." The Court further observed ; "At the out set we desire to point out that we expect that an Advocate for a party would conduct a case with all the sense of responsibility which he is expected to have in the discharge of his duty to his client. In cases where an appeal is dismissed for default where the question arises as to whether there are sufficient grounds for the restoration of the appeal, Courts would ordinarily be inclined to restore the appeal unless there has been gross negligence on the party of the party because the Court are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right.", The Court also observed thus : - "We feel that in this case the conduct of the Advocate in the discharge of his duty has been most reprehensible. We are of opinion that he has in the most light hearted manner put in petitions for restoration whenever the applications were dismissed for default and each time has conveniently trotted out some excuse for his not being present at the time when the application, was put up. We went to make it clear that Advocate cannot trifle with courts in this manner. We went to make it clear that Advocate cannot trifle with courts in this manner. There is grave responsibility on the Advocate and there is a duty both to the client as well to the Court. We should have taken steps against the Advocates on the administrative side but we retrain from doing so now. But here we would make it clear that every Advocate should be present at the time when a case is called on for hearing and if he is likely to be busy in any other courts we expect that he would move the court to put his case by, We will not countenance an application for restoration where the party of his Advocate does not appear in court but later files an application merely alleging that his Advocate was busy in another court and hence could not appear in time." 10. The learned counsel wanted to take advantage of his decision to the effect that the mistake -of the advocate appearing for the appellant in the court below should not be allowed to visit evil consequence on the appellant as he himself had not been guilty of any latches and he had done all well that was within his power to do in order to see that the advocate would reach the court in time when the case is taken up. He relied upon the affidavit filed by the appellant and contends that in view of what has been stated in the affidavit, sufficient ground has been made out inasmuch as a Pairokar who was present in court had gone out to call the counsel but for some reason the counsel could not be present in court when the appeal was called out. 11. I have already observed earlier that there does appear to be any latches or negligence on the part of the appellant himself. However, the affidavit filed in support of the application for restoring the appeal has been drafted in a slip shod manner and care has not been taken to even verify it in the manner required by law. It need be impressed here that a counsel who drafts an affidavit for the client must be careful in seeing that only true facts are stated and they are verified in accordance with the provisions contained in Order 19 of the Code. It need be impressed here that a counsel who drafts an affidavit for the client must be careful in seeing that only true facts are stated and they are verified in accordance with the provisions contained in Order 19 of the Code. If any fact is not in the personal knowledge and its knowledge is delivered through some other source, then such source must be clearly indicated. An effort should be made to separate those facts in the affidavit which are sworn on the personal knowledge of the 'deponent and other portions which are based on an information received from others clearly indicating the name of the person and other particulars of the source from which that knowledge was derived. The facts which are based on record or based on legal advice should also be clearly indicated. This rule has not been followed in drafting and verifying the affidavit which has been filed by the appellant in support of the application for restoring the appeal. However, from the order of the Court and the order-sheet this much is clear that earlier a Pairokar of the appellant was present and counsel had also appeared who was informed that the appeal would be taken up after lunch intervals, when the appeal was called out after lunch interval the Pairokar was present and he went out on the pretext of his calling his counsel and ultimately at 3.15 p.m. when the appeal was finally called out even the Pairokar was not present. It appears that he might nave gone to call his counsel who was busy elsewhere and when the appeal was called put neither the Pairokar nor the appellants counsel were present and the appeal was dismissed. In these circumstances, it cannot be said that the appellant himself was guilty of any latches or negligence. As observed in Bansilal's case (supra), it is the duty of the counsel to make arrangement that he appears in the court when the case is called out the Pairokar in this case was present in court but it was the counsel who ailed to appear and the fault squarely lies with the counsel in not making himself available when the appeal was called out. He must atleast have send some information to the court intimating the reason why he was unable to appear to argue the appeal. 12. He must atleast have send some information to the court intimating the reason why he was unable to appear to argue the appeal. 12. Looking to the facts of the case and only with a view that evil consequence may not visit the appellant. I would accept this appeal but in the circumstances the costs imposed should be paid by the counsel and not and appellant himself for the inconvenience caused to the other side. assess the costs at Rs. 500 which are to be paid by the counsel who was appearing for the appellant in court below. 13. In the result, I allow the appeal, set aside the order or the Court below and direct that the appellants application for setting aside tire order of dismissal of the appeal dated 19-5-79 shall stand allowed on condition that the counsel appearing for the appellant in the court below shall pay a sum of Rs. 500 by way of costs to the respondent within two months from todays date, should the appellants counsel fail to do so within the said time, mis-appeal shall stand dismissed. The appellant shall also pay the cost in this 'appeal to the respondent.