JUDGMENT H. Baruah, J. 1. Heard Mr. M. Zothankhuma, learned Sr. counsel assisted by Mr. Lalfakawma, learned Counsel for the Appellant as well as Mr. M.M. Ali, learned Counsel for the Respondent No. 8 and Mr. N. Sailo, learned Sr. counsel assisted by Mrs. Dinari T. Azyu, for the Respondent No. 3. 2. In challenge is the judgment and decree dated 1-2-2011 passed by learned Senior Civil Judge No. 3, Aizawl in Civil Suit No. 113 of 2010 whereby and whereunder the suit of the Plaintiff, the Appellant herein is dismissed and counter claim of the Respondent No. 3 is decreed. 3. The brief facts for the purpose of this appeal may be placed as under: The Appellant herein as Plaintiff filed Civil Suit No. 113 of 2010 against the Respondents herein as Defendants for declaration of his right, title and interest in the plot of land covered under LSC No. 132 of 1973 described fully in the plaint. The Appellant herein is the son of C. Thangzuala, since deceased. Appellant's predecessor in interest said Thangzuala was the owner and possessor of the land covered by LSC No. 132 of 1973 while said Thangzuala was in his dead bed declared in presence of various others that Appellant is his legal heir in respect of LSC No. 132 of 1973. Though the LSC was not mutated in the Appellant's name, he obtained heir ship certificate No. 252 of 2010 in respect of the LSC on 17-5-2010. Appellant's father died in the year 2001. In the month of March 2009 Appellant received a telephonic information from an unknown person that the land under LSC No. 132 of 1973 was mortgaged in his favour by Respondent No. 1 for a loan and accordingly the LSC was muted in his name since the Respondent No. 1 was unable to repay the loan. An inquiry being conducted by the Appellant it came to his knowledge that the LSC No. 132 of 1973 was stealthily taken away by the Respondent No. 1 herein with the Respondent No. 2 who were sisters to the Appellant and the same was muted in the name of Respondent No. 1 on 29-5-2004 by forging the signature of the Appellant's father who died in the year 2001. The Respondent No. 1 mortgaged the land under the LSC as indicted above with Respondent No. 8 for Rs. The Respondent No. 1 mortgaged the land under the LSC as indicted above with Respondent No. 8 for Rs. 10 lacs on 13-7-2004 while the Respondent No. 2 mortgaged the aforesaid land in favour of Respondent No. 3 on 12-1-2007 for Rs. 5 Lacs. It would be appropriate to mention that after the death of the Appellant's father in the year 2001, the LSC which stood in his name was some how transferred in the name of the Respondent No. 1 and then Respondent No. 2 by making applications perhaps with the appropriate authority. 4. On account of such transfer of the land under the LSC as aforesaid the Appellant as Plaintiff filed the suit as indicated above for declaration of his right, title and interest in the land on the basis of the heirship certificate issued in his favour on 17-5-2010 and also on the factum of being the legal heir of Thangzuala, since deceased. 5. On filing of the suit the trial court issued summons to the Respondents asking each of the Respondent to file written statement. Defendant-Respondent No. 3 herein filed written statement and also filed counter claim in respect of the land covered by LSC No. 132 of 1973. During the pendency of the suit, on the application of the Respondent No. 8 he was impleaded as one of the Defendants in the suit. The suit proceeded for filing of the written statement by the Defendants and also for filing of the written statement by the Plaintiff in respect of the counter claim made by Respondent No. 3. The suit was posted on 21-12-2010 and the trial court passed the following order: Ld. Counsel for the Plaintiff is present. As prior permission of this Court, ld. counsels for the Defendant Nos. 3 and 8 are on tour. Hence adjourned the Court as follows-Fixed 1-2-2011 for W/S On 1-2-2011, learned Addl. A. G. and counsel for the Respondents Nos. 1, 2, 3 and 8 remained present but all others parties to the suit remained absent without showing any cause. Mr. M. M. Ali, learned Counsel representing Respondent No. 8 and Mr. Rualkhuma Hmar, learned Counsel representing Respondent Nos. 1 and 2 prayed for dismissal of the suit for non appearance of the Plaintiff, the Appellant herein. 1, 2, 3 and 8 remained present but all others parties to the suit remained absent without showing any cause. Mr. M. M. Ali, learned Counsel representing Respondent No. 8 and Mr. Rualkhuma Hmar, learned Counsel representing Respondent Nos. 1 and 2 prayed for dismissal of the suit for non appearance of the Plaintiff, the Appellant herein. In view of the submission, the learned trial court proceeded to pass the judgment and decree dismissing the suit of the Plaintiff and decreeing the counter claim of the Respondent No. 3. 6. Mr. M. Zothankhuma, learned Sr. counsel appearing for the Appellant submits that the impugned judgment and decree is erroneous and illegal since the same is passed overriding the rights and interest of the parties to the suit, the Appellant-Plaintiff in particular. It is argued by him that on the date of passing of the judgment and decree i.e. 1-2-2011, the Plaintiff-Appellant's counsel could not appear on account of her delivery. Mr. Micheal Zothankhuma in order to substantiate his submissions has led this Court through the documents annexed to this memo of appeal. It is also submitted by him that among the Defendants, the Defendant No. 3 only filed the written statement along with his counter claim. On filing of the counter claim by the Defendant No. 3, the trial court directed the Plaintiff Appellant to file W/S and fixed date for submission of W/S by the Plaintiff as well as other Defendants of the suit. Mr. Micheal Zothankhuma, learned Sr. Counsel in his usual fairness submits that on the date of the judgment and order i.e. on 1-2-2011 no application was preferred from the side of the Plaintiff-Appellant showing the cause of absence. As the learned Counsel appearing for and on behalf of the Appellant was prevented from appearing before the court in the suit by cogent reason, the learned trial court ought not to have dismissed the suit on the date and decreed the counter claim of the Defendant No. 3, the Respondent No. 3 herein. It is submitted by Mr. Zothankhuma, the leaned Sr. counsel that on account of counsel's absence the right of the Plaintiff should not be denied. It is submitted by Mr. Zothankhuma, the leaned Sr. counsel that on account of counsel's absence the right of the Plaintiff should not be denied. Under the circumstances it would have been appropriate for the trial Judge to offer a further opportunity to the Plaintiff-Appellant as well as other Defendants to proceed with the suit and file W/S. It is submitted further that by the judgment and order dated 1-2-2011 impugned herein, the rights of the respective party to the suit has been denied. It is submitted by Mr. Micheal Zothankhuma that on the impleadment of the Respondent No. 8 who was also a mortgagee of the land failed to protect his right on account of mortgage of the land in his favour by the Defendant-Respondent No. 1. Defendant-Respondent No. 3 being a mortgagee of the land covered under LSC as indicated above mortgaged by Defendant-Respondent No. 2 herein and for that a counter claim filed, a similar right would have existed in favour of the Defendant-Respondent No. 8, he being the mortgagee of the land under the LSC, mortgaged by the Defendant-Respondent No. 1. Over and above, the Plaintiff being the holder of the heirship certificate and the legal heir of the deceased Thangzuala, his right is also denied by the judgment and order dated 1-2-2011 impugned herein. 7. It is contended further by Mr. Micheal Zothankhuma, learned Sr. counsel that under the facts and circumstances of the case the impugned judgment and decree cannot stand. Mr. Zothankhuma in support of his contention relied on the ratio laid down in the case between Rafiq and Anr. v. Munshilal and Anr. reported in (1981) 2 SCC 788 . In paragraph 2 and 3 the Apex Court held as under: 2. We have heard Mr. O. P. Rana, learned Counsel for the Appellant, and Mr. A.K. Sanghi, learned Counsel for the Respondent. The High Court disposed of the appeal preferred by the present Appellant in the absence of the learned Counsel for the Appellant. When the Appellant became aware of the fact that his appeal had been disposed of in the absence of his advocate, he moved an application in the High Court to recall the order dismissing his appeal and permit him to participate in the hearing of the appeal. When the Appellant became aware of the fact that his appeal had been disposed of in the absence of his advocate, he moved an application in the High Court to recall the order dismissing his appeal and permit him to participate in the hearing of the appeal. This application was rejected by the High Court on the ground that though the application was prepared and drafted and an affidavit was sworn on 29th October, 1980, the same was not presented to the court till November 12, 1980 and that there is no satisfactory explanation for this slackness on the part of the learned advocate who was requested to file the application. 3. 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 court's procedure. 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. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, 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. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the Respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi. 8. In our present case, on the date of passing the judgment and decree impugned herein, the advocate for the Plaintiff-Appellant was prevented from appearing on account of her delivery. 200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi. 8. In our present case, on the date of passing the judgment and decree impugned herein, the advocate for the Plaintiff-Appellant was prevented from appearing on account of her delivery. Though the cause of non-appearance of the advocate was not brought to the notice of the trial Judge, the trial Judge keeping in view of the interest of the contesting parties to the suit ought not to have dismissed the suit immediately and decreed the counter claim. The ratio as propounded by the Apex Court in the case (supra) would also be applicable to the case at our hand. We have already indicated that the Appellant being the heir and holder of the heirship certificate filed the suit to declare right, title and interest in the land covered under the LSC as indicted above while Respondent No. 3 filed counter claim being the mortgagee of the land under the LSC. Facts also disclose that Respondent No. 8 is also a mortgagee of the land under the LSC as indicated above while the Respondent No. 1 and 2 are the daughters of the Thangzuala, since deceased. So the interest of the respective party turned invalid in the suit and by dismissing the suit on account of Plaintiff's default interest of the contesting parties cannot be allowed to suffer. 9. Under the facts and circumstances, it is thought appropriate that the rights of the contesting parties be decided by the trial court by proceeding with the suit. Abrupt foreclosure of the rights of the contesting party(s) would not be appreciable and justifiable. 10. In the result, the appeal is allowed. The impugned judgment and order dated 1-2-2011 passed by the Court of Senior Civil Judge, Aizawl in Civil Suit No. 113 of 2010 is set aside and quashed. The suit is remanded back to the trial court to proceed in accordance with law. While proceeding, the trial court shall offer opportunity to the respective party to file written statement as against the suit and the counter claim. 11. Registry is directed to transmit the records immediately to the trial court to proceed with the trial. No Cost. Appeal allowed