JUDGMENT 1. - This order will dispose of two applications, one, filed under Section 5 of the Limitation Act seeking condonation of the delay in filing restoration application, and the other, filed under O. 41 It 19, Civil Procedure Code seeking restoration of S.B. Civil Second Appeal No. 40/1981 which was dismissed in default on account of the absence of the learned counsel for the appellant. 2. The restoration is sought on the grounds that Dr. M.M. Tewari, advocate for the appellants-applicants was in hospital for his treatment during the period, prior to & after 10.8.88, and Dr. S.K. Tewari, other counsel for the appellants, was out of station for a couple of months, and thereby, both of them could not attend the court on 10.8.1988; and that, the applicants were told by their counsel that disposal of their appeal would take its own course and time because of backlog of pending cases before the Court, therefore, they would be informed as and when their presence would be required court, thereby they need not to appear on each and every date of hearing, an further that, on account of indisposition of Dr. M.M. Tewari and absence of Dr. S.K. Tewari at Jaipur the applicants could not be informed of the date of hearing, thereby the applicants could not make themselves present in court on 10.8.1988. Taking the aid of the aforesaid contention, Dr. M.M. Tewari contended that the absence of the applicants was bonafide, and beyond their control. 3. As to the knowledge of the dismissal of the appeal, to the applicants, it has been urged that when son of the applicants had gone to the court of Munsif & Judicial Magistrate, Jhunjhunu on 2.11.1991 in some other case, then it came to his notice that some exparte order was passed by the Magistrate in an execution case, therefore, he applied for furnishing copy of various orders in execution case the very day and the copies were furnished to him on 13.11.1991 while it came to his notice about an order of dismissal of the second appeal on 10.8.1988 in default. Thereupon, their counsel was contacted and apprised of the aforesaid order of dismissal and immediately thereafter on 15.11.1991, the restoration application has been filed after 3 years & 66 days, alongwith an application under Section 5 of the Limitation Act, duly supported by advocate, Dr. M.M. Tewari's affidavit. Thereupon, their counsel was contacted and apprised of the aforesaid order of dismissal and immediately thereafter on 15.11.1991, the restoration application has been filed after 3 years & 66 days, alongwith an application under Section 5 of the Limitation Act, duly supported by advocate, Dr. M.M. Tewari's affidavit. Affidavit of Vinod Kumar son of the applicants has also been filed. 4. Notice was issued on the restoration application so also the application for condonation of the delay. The respondent filed reply to the applications. But, in the reply, it has not been denied that Dr. M.M. Tewari or Dr. S.K. Tewari was not advocate on behalf of the applicants. The fact of sickness of Dr. M.M. Tewari has not emphatically been denied. The only assertion made in the reply is that neither any documentary proof that Dr. M.M. Tewari was hospitalised on 10.8.1988, has been submitted nor any averment to this effect has been incorporated in the affidavit sworn by Dr. M.M. Tewari. 5. In this regard, I have perused the averments made in affidavit sworn by Dr. M.M. Tewari. According to its second para, Dr. M.M. Tewari stated on oath that the contents of paras I to 7 of the restoration application are true to his personal knowledge. In para 2 of the restoration application, it has been urged that Dr. M.M. Tewari was in hospital for his treatment during this period prior to 10.8.88 and after 10.8.1988. In view of the affidavit of Dr. M.M. Tewari who has been practising in this Court for last more than fifty years, the fact of his indisposition cannot be held to be false only in the absence of any documentary proof. 6. Main thrust in the reply to the applications is that the restoration application is hopelessly time barred, because the period for filing such application is prescribed as thirty days under the Limitation Act whereas the present application has been filed after 3 year & 66 days and thus it is time barred of the aforesaid period. It has also been urged in the reply that the application for restoration in such matters should have been filed within thirty days from the date of dismissal and not from the knowledge of the dismissal. 7. It has also been urged in the reply that the application for restoration in such matters should have been filed within thirty days from the date of dismissal and not from the knowledge of the dismissal. 7. It has also been urged in the reply to the application under section 5 of the Limitation Act that the applicants failed to prove any sufficient cause by which they were prevented to take care of the appeal; and that, in case their Advocate was not well or he was out of station, it was responsibility of the appellants or their counsel to have made alternative arrangements to ensure that the appeal was not dismissed in default for non-appearance of any advocate. It has further been urged in the reply to the applications that the delay of each day is required to be explained by the applicants for moving the application for restoration after expiry of the prescribed period for filing such applications, but the applicants failed to do so, therefore, the restoration application being time barred deserves to be dismissed. 8. I have heard the learned counsel for the applicants and the respondent, and have also perused the applications and their reply filed by the parties. No doubt, Dr. M.M. Tewari was counsel for the applicants-appellants in the appeal, and as per order sheets drawn in the appeal, on each and every date, learned counsel for the appellants had been appearing and the appellants of the applicants never appeared before the Court. 9. Let me advert to the principles of law laid down in some of the decisions of this Court and the Apex Court, referred to by the learned counsel for the parties. 10. In M/s Krishna Oil Mills & others Vs. Firm Shriniwas & Co. (1988 (1) RLR P. 275) , the restoration application was filed after a delay of 258 days because the applicant was not having knowledge about the death of their counsel so also about listing of their appeal. The appeal dismissed in default was restored by the Division Bench of this Court. In that case, reliance was placed on the decision of the Apex Court in Rafiq Vs. Munshilal ( AIR 1981 SC 1400 ) wherein it has been observed as under : "After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. In that case, reliance was placed on the decision of the Apex Court in Rafiq Vs. Munshilal ( AIR 1981 SC 1400 ) wherein it has been observed as under : "After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job." It was further pointed out that as per the present adversary legal system when a person selects his advocate, briefs him and pays his fees can supremely remain 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. In Rafiq Vs. Munshilal (supra), the Apex Court not only set aside the order of the High Court both dismissing the appeal and refusing to re-call that order, but also directed that the appeal be restored to its original number in the High Court and be disposed of according to law and that apart, it was directed that if there was a stay of dispossession, it would continue till the disposal of the matter by the High Court. 11. In M/s Krishna Oil Mills Vs. M/s Shriniwas & Co. (supra) the Division Bench of this Court also placed reliance upon the decision of the Apex Court in Collector, Land Acquisition Anantnag Vs. Mst. Katiji (AIR 1987 SC p. 1353) , wherein the Apex Court while considering an application filed under Section 5 of the Limitation Act, whether could condone or not to condone the delay, laid down six principles to be kept in view while dealing with such matters. 12. Having considered and kept in mind the principles of law laid down in M. Rafiq Vs. Munshilal (supra) so also in Collector Land Acquisition Anantnag Vs. 12. Having considered and kept in mind the principles of law laid down in M. Rafiq Vs. Munshilal (supra) so also in Collector Land Acquisition Anantnag Vs. Katiji (supra), I am firmly of the opinion that in the case at hand, I must ditto the action and view taken in the cases, referred to above, because, the present applicants after engaging their counsel, Dr. M.M. Tewari or Dr. S.K. Tewari, remained supremely confident that they would lookafter their interest; at the time of the hearing of the appeal, the personal appearance of the applicants was not only not required but hardly useful as they having done everything in their power to effectively participate in the proceedings could rest assured that they had neither to go to the High Court nor was he to act as a watchdog of the advocate that the latter appeared in the matter when it was listed and it was not part of their job. Moreover, the applicants should not suffer for the inaction, deliberate omission, or misdemeanour of their agent, namely, the Advocates. As stated above, the fact of indisposition of Dr. M.M. Tewari or Dr. S.K. Tewari being out of station, cannot be held to be false in view of the affidavit sworn by Dr. M.M. Tewari. That apart, it is not the case of the respondent before this Court, the learned Advocate absented himself deliberately or intentionally. However, I can also not be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. 13. As laid down in Collector (LA), Anantnag Vs. Mst. Katiji (supra) "every day's delay must be explained" does not mean that a pedantic approach should be made and the doctrine must be applied in a rational common sense pragmatic manner, and that apart, there is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of malafides because a litigant does not stand to benefit by resorting to delay and in fact, he runs a serious risk. In this view of the matter, the contention urged by Shri L.L. Jain on behalf of the respondent that every day's delay must be explained exposes hollowness and has no force. 14. Having adopted the principles of law laid down in Rafiq Vs. Munshilal and Collector (LA) Anantnag Vs. Mst. In this view of the matter, the contention urged by Shri L.L. Jain on behalf of the respondent that every day's delay must be explained exposes hollowness and has no force. 14. Having adopted the principles of law laid down in Rafiq Vs. Munshilal and Collector (LA) Anantnag Vs. Mst. Katiji (supra), the cases cited by Shri Jain on behalf of the respondent, in the facts and circumstances of the present case, renders no help to him. In these circumstances, I am of the opinion that the appellants were prevented by sufficient cause from appearing when the appeal was called on for hearing inasmuch as even otherwise, for the inaction, omission, or misdemeanour of the counsel for the applicants, the applicants cannot be held responsible to suffer injustice merely because their choosen advocate defaulted in appearing on the date of hearing. In my considered view, the restoration application deserves to be allowed. 15. Now the only point remains to be decided is as to whether the delay in filing the application should be condoned or not. Shri L.L. Jain on behalf of the respondent urged that in the case at hand, provisions of Section 5 of the Limitation Act cannot be made applicable. He has also cited some of the decisions in support of his contention. 16. But, tout au contraire, Shri M.M. Tewari, on behalf of the applicants, put much stress by relying on the decision in Shri Anwari Basavaraj Patil Vs. Shri Siddaramaih (1993 (1) JT p. 328 SC) . In the case (supra), their Lordships of the Apex Court after considering relevant sections and provisions of the Limitation Act held that the provisions of Section 5 of the Limitation Act when are not expressly excluded then there is no reason not to apply the provisions of Section 5 of the Limitation Act. Learned counsel for the respondent failed to point out any of the provisions either of the Limitation Act or the Code of Civil Procedure in order to show that the provisions of Section 5 of the Limitation Act are excluded from being applied in civil appeals pending before the High Court. 17. The cases referred to by the learned counsel for the respondent stand distinguished by virtue of the decision of the Apex Court in Anwari Basavaraj Patil Vs. Siddaramaiah (supra). 18. 17. The cases referred to by the learned counsel for the respondent stand distinguished by virtue of the decision of the Apex Court in Anwari Basavaraj Patil Vs. Siddaramaiah (supra). 18. As held above, after having engaged their counsel, the applicants, in view of the principles of law laid down in Rafiq Vs. Munshilal (supra), it was not their duty or any obligation on the part of the applicants to have acted as watchdog on the proceedings of the appeal. And, for the inaction or omission whatsoever of their counsel, the applicants cannot be attributed. They were prevented by sufficient cause from having any knowledge of dismissal of their appeal. I am inclined to exercise the discretion in this case to condone the delay under Section 5 of the Limitation Act in favour of the applicants because no negligence or inaction or want of bonafides is imputable to them, and a slow movement on their part cannot lead to the inference of want of bonafides or inaction or negligence. Nothing material has been placed on record by the respondent to show that the applicants had prior knowledge of dismissal of their appeal before 14.11.1991 or 2.11.1991. Nor it can be presumed from material on record that delay has occasioned deliberately nor it can be understandable that even after the knowledge having derived of the dismissal of their appeal, they would stand to benefit by resorting to delay nor he would run such a serious risk even after having knowledge of such fact, by keeping reticence on their part. As soon as they derived knowledge, they immediately moved applications for restoration and the condonation of the delay. 19. In the result, I allow both the applications, for condonation of the delay in filing restoration application and for restoration of the main appeal, and condone the delay in filing the restoration application. I recall the order dismissing the appeal in default, dated 10.8.1988. I direct that the appeal (CSA No. 40/81) be restored to its original number and be listed for hearing after receipt of the record of the lower courts. I also direct that if there was a stay order granted by this Court, it would continue till the disposal of the matter by this Court.Application allowed. *******