Judgment : This appeal is against the order passed bythelearned Sub Judge, Pattukottai dated 12. 1986 dismissing the application to restore the appeal which was dismissed for default. 2. The plaintiff who was the appellant before the Sub Judge, Pattukottai is the appellant herein. 3. The petitioner’s case is as follows: The petitioner/ appellant/ plaintiff has preferred the appeal against the judgment passed in O.S.No.222 of 1982 on the file of the District Munsif s Court, Pattukottai. He filed an application for reception of additional plead-ings. It was dismissed by the appellate Court. The appellant preferred a revision to the High Court and the bundie was with the Advocate at Madras. The bundle could not be receivedby the appellant from Madras before the hearing date. On receipt of the same he met his advocate at Pattukottai. He was informed that the appeal was posted for hearing on 22. 1986 and since the appellant did not meet the Advocate, his Advocate had reported no instructions and on that ground, the appeal has been dismissed for default. On 22. 1986 the appellant could not meet his advocate since he has admitted his child in the hospital and was attending on it. The failure of the appellant to be present on the hearing date is no wilful. Hence the application to restore the appeal. 4. The respondent in his counter contends as follows: The appellant could have brought the records before the hearing date if only he had made a trip to Madras to meet his advocate. The revision filed by the appellant was dismissed by the High Court. The appellant wants to drag on the litigation. His claim that his child was unwell and he is attending on it on 22. 1986 is not true. Party’s presence in court when the appeal is being argued is not necessary. If he had given instructions to his advocate, the advocate would have got on with the appeal. The petition is frivolous and is liable to be dismissed. 5. His claim that his child was unwell and he is attending on it on 22. 1986 is not true. Party’s presence in court when the appeal is being argued is not necessary. If he had given instructions to his advocate, the advocate would have got on with the appeal. The petition is frivolous and is liable to be dismissed. 5. On the above pleadings, the learned Sub Judge has held that the appellant who has filed the application has not given the details of the child said to have been unwell and that he had not produced any medical certificate to prove the same and his claim that only when he met the advocate, he was informed that the appeal has already been dismissed is not acceptable and therefore dismissed the application. 6. The appellant herein is the plaintiff who had lost his case before the trial court. He had preferred an appeal before the Sub Court, Pattukottai and the appeal was dismissed on account of the fact that his advocate had reported no instructions. The reason given by the appellant for his advocate who has reported no instructions is that he could not meet him earlier. In the decision reported in Choorampulikkal Assam Kutty and others v. Ramanulukkal Kunhi Mohideen Kutty and others, A.I.R. 1955 Mad. (N. U. C.) 2441, it has been held that in an application to set aside an ex parte decree and restoration of appeal for re-hearing the court has got discretion to order it and if it had allowed the application and given the respondent a chance of being heard in support of the judgment of the trial court, it would be exercising the discretion properly. In the same decision, it has been held as follows: “When an advocate reports no instructions it can of course in the large majority of cases be presumed that the client had made no response to more than one call for the balance of his fees. In cases of this kind a final opportunity may well be afforded in the form of a court direction to the advocate to send a registered letter to his defaulting client that he will report no instructions to the court if he does not instruct him or himself attend court on the adjourned date. It is not possible to lay down any hard and fast rule. It is not possible to lay down any hard and fast rule. A human approach of the kind by courts instead of disposing of appeals ‘ex parte’ and applications to rehear them too strictly in accordance with the requirements of O.41, Rule 21, which taken literally has no real relation to conditions which now exist, will do something to bridge the gulf between the urban lawyers and the village, which the Bench and the Bar should do their best to achieve.” In the decision reported in Rafiq v. Munshilal, A.I.R. 1981 S.C. 1400: 1981 All.L.J. 704: (1981)2 S.C.C. 783: 1981 A.W.C. 423: 1981 All.C.J. 375: 1981 D.R.J. 288, it is held as follows: "A party who, as per the present adversary legal system has selected his 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." "When we approach this appeal in the light of the above two decisions, we have to come to the conclusion that the Subordinate Judge, Pattukottai cannot be said to have exercised the discretionary powers vested with him in a proper manner. It is the appellant before him who has come to Court with a prayer for declaring that the suit property belonged to him and for restraining the respondent in the appellate Court by means of an injunction interfering with his possession and enjoyment of the property. The plaintiff had lost his case before the trial court. It is not as if the plaintiff/ appellant was enjoying some benefit and he is trying to drag on the matter. The relief sought for by him having been declined to him in the trial court, it cannot be stated that he wants to drag on the proceedings. By allowing the application to restore the appeal and deciding the appeal on merits, no prejudice would have been caused to the respondent. Therefore, I am of opinion that the appellate court has failed to exercise the discretionary power vested in it in a proper perspective and in that view, the order passed by it is liable to be set aside." 7. In the result, the appeal is allowed. Therefore, I am of opinion that the appellate court has failed to exercise the discretionary power vested in it in a proper perspective and in that view, the order passed by it is liable to be set aside." 7. In the result, the appeal is allowed. The Subordinate Judge, Pattukottai is directed to restore the appeal on file and dispose of the same on merits after giving sufficient opportunities to both parties to put forward their case, within three months from the date of receipt of the records from the High Court and report the matter to the High Court. No costs.