1. ' When this appeal was fixed for regular hearing on 10-2-1992, the appellant and his counsel remained absent. The matter was called more than once in the Court and as is evident from the order passed by me. dated 10-2-1992, at 12-10 p.m. the appeal was dismissed as none had then appeared on behalf of the appellant. The appellant then filed an application under Order 41, Rule 19, C.P.C. (C.MA. No,170 of 1992) dated 19-2-1992, through his Advocate requesting for restoration and readmission of the appeal. This application came up for hearing on 26-4-1992 when once again none appeared on behalf of the, appellant. The order, dated 26-4-1992, shows that the matter had been called at 12-25 p.m. and since no one was present either on behalf of the appellant or the respondent, the application was dismissed for non-prosecution. Through C.M.A. No,417 of 1992, which is fixed for hearing today, the appellant seeks restoration of C.MA. No,170 of 1992. The main ground urged by the appellant in his affidavit filed in support of the application is that his non- appearance in the case was on account of default committed by the Advocate as per practice cause-list of the cases is not received by a party, consequently, the appellant was totally unaware of the date of hearing in the case. However, according to the appellant he had visited the office of this Court on 26-4-1992 only to inquire about the fresh date of hearing and it was then that the appellant had learnt that the case had been dismissed for non-prosecution.
2. ' The application is vehemently opposed by the learned counsel for the respondent who has also filed written objections on behalf of the respondent. The main contention in the counter-affidavit filed on behalf of the respondent is that the appellant was guilty of inexcusable negligence by failing to pursue his appeal diligently as the appellant had evidently failed to contact his lawyer nor any inquiry had been made by him from the concerned branch from 19-2-1992 to 24-4-1992 to find out the date fixed for hearing of the case, consequently, the application is liable to be dismissed.
3. ' During the course of arguments I inquired from the counsel for the respondent whether he is prepared to accept costs from the appellant but the learned counsel is not interested in the costs.
4. So far as the merits of the case are concerned, I agree with the contention of the learned counsel that apart from the counsel for the appellant, the appellant had been himself guilty of negligence by failing to pursue the case with the due diligence. In any case, the Advocate for the appellant is guilty of gross negligence. Although the contention of the appellant is that he should not suffer on account of the negligence of his Advocate but even if this argument is accepted, then many an Advocate will stop feeling responsible for the case. Under such circumstances, although, the client can proceed against the Advocate for professional misconduct but he has to suffer on account of the negligence of his Advocate. A party who fails to appear in the Court must show that in spite of honest efforts made on its part it was nevertheless prevented on account of C circumstances which were beyond its control. Nothing can be spelt out from the circumstances of the case to indicate that the party, had made any effort to visit the Advocate or to inquire about the next date of hearing.
5. ' For the aforesaid reasons, I find no force in this application and the same is, therefore, dismissed.