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Rajasthan High Court · body

1998 DIGILAW 1148 (RAJ)

Urban Improvement Trust v. Umaid Ram

1998-11-03

MOHD.YAMIN

body1998
Honble YAMIN, J.–This is a revision against the order of learned Additional District Judge No.3, Jodhpur dated 30.3.96 by which he dismissed Civil Misc. Appeal No.18/96. (2). I have heard the learned counsel for both the parties. (3). Brief facts are that plaintiff respondent filed a civil suit No.257/91 against UIT. The suit proceeded exparte because after service of notice nobody appeared on behalf of UIT. The exparte decree was passed. Then the counsel for the UIT informed the UIT on 7.3.95 that an exparte decree was passed. Then the UIT submitted an application before the learned Additional Civil Judge alongwith an application under Section 5 of the Limitation Act to set aside the exparte decree. The application under Order 9 Rule 12 CPC was dismissed on 8.12.95. Appeal was filed before the learned District Judge which was decided by Additional District Judge on 30.3.96 and the same was dismissed. (4). Learned counsel for the petitioner submitted that a scheme was prepared by the UIT and that in case the exparte decree remains in force, serious prejudice will be causes to the petitioner. It has been submitted that both the courts below have acted illegally and with material irregularity in rejecting the application and appeal without looking into the record of the case and the law applicable to it. He has submitted that it was because of the mistake on the part of counsel for the pe- titioner who represented the petitioner before the trial Court that the suit proceeded exparte. The learned counsel who represented the UIT seems to have not discharged his duties in the case. It is apparent on the record that the petitioner suffered exparte decree on account of mistake of the counsel. The client cannot be made to suffer because of the mistake of counsel. It has been submitted that bonafide explanation of the UIT was not considered by the Courts below. As soon as the fact came to the notice of UIT by letter of the counsel dated 2.3.95 which was received on 7.3.95, the petitioner submitted the application to set aside the exparte decree on 20.3.95. There was no fault on the part of the UIT and, therefore, the application to set aside exparte decree should have been allowed. (5). As soon as the fact came to the notice of UIT by letter of the counsel dated 2.3.95 which was received on 7.3.95, the petitioner submitted the application to set aside the exparte decree on 20.3.95. There was no fault on the part of the UIT and, therefore, the application to set aside exparte decree should have been allowed. (5). On the other hand, learned counsel for the respondent submitted that the suit proceeded exparte against the petitioner and the decree was also passed exparte. He submitted that there is no cogent explanation for the delay in filing the application to set aside the exparte decree and the trial Court as well as the appellate Court have not committed any illegality,therefore, the orders of the courts below do not require any interference. Learned counsel for the respondent cited Gouri Shankar & Ors. vs. Satya Narain (1), in which it has been held that Article 123 of the Limitation Act is applicable for setting aside exparte decree. In the cited case the facts were that a suit was filed by plaintiff for recovery of rent and for eviction as well as for permanent injunction. Defendant was served and he engaged a coun- sel who took adjournment to submit written statement. Reply was not filed on various dated. On 3.1.90 when the defendant and his counsel did not appear, exparte proceedings were started against the defendant. Suit was decreed exparte on 26.5.90. Then the execution proceedings were started. Warrant was executed on 12.12.90 and then on 2.1.92 defendant moved the trial Court to set aside exparte decree saying that he came to know about decree on 12.12.90. He received warrant notice of the execution proceedings. He then inquired and come to know that his counsel had left practice about a year ago. An application under Section 5 of the Limitation was also submitted. The trial Court set aside the exparte decree and a revision was filed. It was held that the order setting aside the decree was arbitrary and was liable to be set aside. Relying on this citation the counsel for the respondent submitted that there was no need to interfere in the order of the learned lower courts and the revision petition should not be allowed. (6). Learned counsel for the petitioner cited Sushila Narahari & Ors. vs. Nandkumar & Anr. Relying on this citation the counsel for the respondent submitted that there was no need to interfere in the order of the learned lower courts and the revision petition should not be allowed. (6). Learned counsel for the petitioner cited Sushila Narahari & Ors. vs. Nandkumar & Anr. (2), in which application was late by 40 days and there was de- reliction of duty by the advocate because he had withdrawn his vakalatnama without notice to the appellants. It was held that the delay was justified and exparte decree was set aside. Relying on this citation, learned counsel submitted that in the facts of this case the counsel of the UIT has derelicted his duty because he did not appear in the case and did not inform about the exparte decree within time. He submitted that in view of this pronouncement of the Supreme Court the petitioner was well justified in filing the application with delay. He submitted that the delay should have been condoned. (7). I find from the record that the exparte decree was passed on 16.1.95 and the fact came to the notice of the petitioner when certified copy of judgment and decree were sent by the counsel with his letter dated 2.3.95 which was received on 7.3.95. The petitioner moved an application to set aside exparte decree on 20.3.95. Thus there was a delay of about 63 days for which a reasonable explanation was given. It all occured due to dereliction of duty of the counsel who was engaged by the UIT and because of whose slackness exparte proceedings had started. The reasons were given in the application and have been discussed by the learned trial Judge in his order. The explanation is that a new penal of advocates was being prepared and the learned counsel who was representing the UIT before the trial Court knew about it that his name is not included in that penal. Therefore, he dere- licted his duty to appear before the trial Court and, therefore, exparte proceedings were started. Ultimately exparte decree was passed and after some time the counsel informed that the exparte decree had passed. Therefore, he dere- licted his duty to appear before the trial Court and, therefore, exparte proceedings were started. Ultimately exparte decree was passed and after some time the counsel informed that the exparte decree had passed. In the circumstances of this case I feel that it is a fit case in which the defendant petitioner should be allowed to fight the case on merits because it was because of the fault on the part of his ad- vocate that exparte decree was passed. The advocate was definitely responsible for dereliction of his duty for which the petitioner client should not suffer. In view of above, I find that the petitioner was well justified in filing the application with delay. The delay is accordingly condoned. (8). Consequently, the revision petition is allowed. The orders of the courts below are set aside and the application to set aside the exparte decree is allowed. The exparte decree is set aside. The trial Court is directed to allow the defendant to appear and contest the case from the stage when the exparte proceedings started against him. No orders as to costs.