JUDGMENT 1. - This is Civil Misc. Appeal against the order dated 27-4-1977 passed by learned Additional District Judge No. 2, Jaipur City, Jaipur in Civil Misc. Case No. 17/1974 by which application of the appellant plaintiff under Order 41, Rule 19 Civil Procedure Code was dismissed. 2. Briefly stated the facts of the case are that appellant plaintiff filed a Civil suit for possession and mesne profits against the respondents in the Court of learned Munsif, Jaipur City (West) Jaipur. The appellant prayed for a decree of possession of land and the house constructed on the same. In the said suit the defendants respondents raised a legal objection that since the subject matter of the suit was agricultural land and all the reliefs claimed can be granted by a Revenue Court, therefore, it was not triable by a Civil Court. The learned trial court sustained this legal objection and held that the suit was exclusively triable by a Revenue Court and directed to return the plaint to the appellant for presentation in the competent Court vide his order dated 19-10-1972. The appellant preferred the Civil Misc. Appeal under Order 43, Rule 1(a), Civil Procedure Code in the Court of the learned District Judge, Jaipur City which was transferred to the Court of the learned Additional District Judge, Jaipur City for disposal. 3. In the aforesaid appeal the last date fixed was 12-12-1973 for awaiting the record of the trial court and also for arguments when it was dismissed in default as none appeared for appellant. An application was filed under order 41, Rule 19 Civil Procedure Code where in it was stated that Shri Ram Kishore Sharma (Hemani) Advocate who was working with Shri Vidhya Bhushan Sharma Advocate as assistant at that relevant time, went in the court 12-12-1973 twice or thrice to find out whether the arguments will be heard in the said appeal. But the court was busy in other cases upto 3 p. m. He thereafter became busy in other cases and again came in the court at about 4.30 p m. and saw 'peshi' register of the Court and by mistake came to know from an entry that the appeal was adjourned to 8-2-1974. He therefore, noted down this date on the Sarvark of the file of the appeal and also made entry in the diary of Shri Vidhya Bhushan Sharma, Advocate. He therefore, noted down this date on the Sarvark of the file of the appeal and also made entry in the diary of Shri Vidhya Bhushan Sharma, Advocate. The counsel for the appellant on 8 2-1974 came to the Court and when the appeal was not called up to 1. p. m. an enquiry was made from the Reader of the Court and then it was revealed to him that not such appeal was fixed on this date. The Reader after checking the 'Peshi' Register of 12-12-1973 informed him that the appeal of the appellant was already dismissed in default on 12-12-1973. The counsel for the appellant therefore, filed an application under Order 41, Rule 19 Civil Procedure Code on the same day that is 8-2-1974 for re-admission of the appeal dismissed for default stating there in facts mentioned above and praying that he had no knowledge about the dismissal of the appeal on 12-12-1973 and this came to their knowledge only on 8-2-l 974. An application under Section 5 of the Limitation Act supported by affidavits of Shri Ram Kishore Sharma (Hemani), Advocate and that of the appellant were also filed. This application was contested by the respondent and after recording the evidence and hearing the arguments of both sides the learned Additional District Judge dismissed the application of the appellant and held that the appeal was rightly dismissed in default. 4. None has appeared on behalf of the respondent. The learned Counsel for the appellant Shri R.S. Rathore Advocate has contended that the learned Additional District Judge has erred in dismissing the application filed under Order 41, Rule 19 CPC. He has pointed out that Shri Vidhya Bhushan Sharma and Shri Ram Kishore Sharma (Hemani), Advocate bad appeared in witness box and stated that the date 8-2-1974 was noted by Shri Hamani out of mistake. Diary Ex. 1 was also produced in which the date of 8-2-1974 has been noted. The entry of the Peshi regarding the same mistaken date was Ex. 2 and Ex. 3 Sarvarak of the file of the appeal was also produced on which also the date of 8-2-1974 was mentioned, On behalf of the respondent Ahmedkhan respondent himself was examined as witness and he denied the assertion of the appellant and stated that Shri Hemani had never come in the court on the relevant date. 5. 2 and Ex. 3 Sarvarak of the file of the appeal was also produced on which also the date of 8-2-1974 was mentioned, On behalf of the respondent Ahmedkhan respondent himself was examined as witness and he denied the assertion of the appellant and stated that Shri Hemani had never come in the court on the relevant date. 5. It is clear from the above oral and documentary evidence that the counsel for the appellant did come to court on 12-12-1973 to attend the appeal but at 4.30 p. m. out of mistake noted wrong date from the 'peshi' Register. This wrong date had been noted in the diary as well as the Sarvarak of appeal. 6. I find no reasons to disbelieve the statement made on oath by both the Advocates, coupled with the documentary evidence produced in support of the same. In case of Rafiq and Anr. v. Munshilal AIR 1981 Supreme Court 1400 their Lordships of the Supreme Court in a similar case have held that the parties should not by made to suffer for the misdemeanour or in action of their counsel. 7. The procedure has been laid down with a view to assist the courts in dispension of justice and not to create obstacles in path of justice. The parties engage advocates and feel confident that their case will be looked after carefully by their counsels. A counsel has to attend several cases every day and he sometimes is apt to commit a bonafide mistake noting down wrong date. In such circumstances the parties should not be made to pay penalty for the mistake or inaction of their counsel. In this case it is evident that the wrong date was noted by bonafide mistake of the counsel of the appellant. The insistance of the learned Additional District Judge that is was necessary to have examined the appellant himself has no bearing on the matter as it were the Advocate who had First Information of the whole matter. It has also pointed out that the appellant should have summoned the 'Peshi' Register and has drawn adverse inference on this account. In my opinion summoning of 'peshi' Register was not essential in view of the other documentary evidence produced in the Court and still if the court desired, it could have called the 'peshi' Register for its own Satisfaction. 8. In the case of Rafiq and Anr. In my opinion summoning of 'peshi' Register was not essential in view of the other documentary evidence produced in the Court and still if the court desired, it could have called the 'peshi' Register for its own Satisfaction. 8. In the case of Rafiq and Anr. v. Munshilal and Anr. (Supra) their Lordships of the Supreme Court held that where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system has, selected this advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. 9. In view of law discussed above I am of the considered opinion that learned Additional District Judge has erred in dismissing the application of appellant filed under order 41, Rule 19 CPC. 10. The order under appeal dated 27-4-1977 is therefore, set aside and the appeal is restored to its number with direction the Additional District Judge will proceed to decide the same on merits expeditiously. 11. Appeal is accepted with costs.Appeal Accepted With Costs. *******