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2000 DIGILAW 650 (PNJ)

Jangir Singh v. Prem Motors

2000-07-03

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a civil revision and has been directed against the order dated 29.5.1999 passed by Civil Judge (Sr. Divn.), Barnala, who partly allowed application of defendants No. 24, 31 and 40 under Order 9 Rule 7, CPC, and allowed then to join the proceedings of the case from that stage, i.e. 29.5.1999. 2. Some facts can be noticed in the following manner :- Plaintiff Jangir Singh and others filed a suit against M/s Prem Motors and others, including the present petitioner on 30.12.1991 for a declaration and for mandatory and permanent injunction. The notice of the suit was given to the defendants. Defendants No. 24, 31 and 40 appeared before the trial court on 14.1.1993 through their counsel Shri R.L. Verma, who also filed Power of Attorney on their behalf and on behalf of defendants No. 1, 2, 13, 16 and 32. Written statement was, however, filed by defendants 1 and 2. Issues were struck on the pleadings of the parties and the case remained pending before the Court of Shri Varinder Aggarwal, Civil Judge (Sr. Divn.), Barnala. He made a reference and the case was transferred to Shri G.S. Saran, the then Civil Judge (Sr. Divn.), Barnala, by the learned Distt. Judge vide orders dated 3.2.1996. Again, the case was transferred from the court of Shri G.S. Saran to the court of Shri Baljinder Singh. Further, an application was moved for transfer of the case from the court of Shri Baljinder Singh, which was dismissed on 5.11.1997. Feeling aggrieved, Jaswant Singh, defendant No. 18, filed a civil revision before the High Court and vide order dated 17.9.1998, the High Court transferred the case to the court of Shri Dilbagh Singh Johal, Addl. Civil Judge (Sr. Divn.), Barnala. When the case was taken up by the trial court on 19.2.1998, Shri R.L. Verma, counsel for the petitioner, pleaded no instructions. Consequently, the defendants 1, 2, 16, 24, 31 and 40 were proceeded ex-parte. Later on, an application was moved under Order 9 Rule 7, CPC, on behalf of these defendants for setting aside the ex-parte order dated 19.2.1998 with the plea that since their lawyer pleaded no instructions, it was incumbent upon the court to issue notice to the defendants so that they may be able to engage a new counsel. Later on, an application was moved under Order 9 Rule 7, CPC, on behalf of these defendants for setting aside the ex-parte order dated 19.2.1998 with the plea that since their lawyer pleaded no instructions, it was incumbent upon the court to issue notice to the defendants so that they may be able to engage a new counsel. This application was contested by the plaintiff and vide the impugned order dated 29.5.1999, the same was partly allowed. Though the defendants were permitted to participate in the proceedings, they were not permitted to file the written statement to the main plaint. In this manner, the petitioner is aggrieved by the order dated 29.5.1999. 3. I gave heard the counsel for the parties and with their assistance have gone through the record of this case. 4. What is the position of law on this point has been stated by the Honble Supreme Court in Malkiat Singh v. Joginder Singh and others, (1998-1) 113 PLR 271 and the Honble Supreme Court was pleased to hold that when a lawyer makes a statement before the trial court that he does not have any instruction on behalf of his client, in these circumstances, it is obligatory on the part of the trial court to issue notice to the client so that he may be able to defend his case. In this case, when the ex-parte order dated 19.2.1998 was passed, the court did not issue notice to the defendants perhaps on the assumption that Shri R.L. Verma is also appearing on behalf of other defendants. This procedure adopted by the trial court is not in accordance with the dictum of the Honble Supreme Court. The moment the application under Order 9 Rule 7, CPC, was to be allowed by the trial court, the trial court ought to have given the opportunity to the applicants to file the written statement in order to contest the claim of the plaintiff. This procedure has not been adopted and, therefore, there is an illegality and impropriety on the part of the trial court. 5. Faced with this difficulty, counsel for the respondents submitted that the petitioner was negligent. He knew that ex-parte order has been passed on 19.2.1998 against him. This procedure has not been adopted and, therefore, there is an illegality and impropriety on the part of the trial court. 5. Faced with this difficulty, counsel for the respondents submitted that the petitioner was negligent. He knew that ex-parte order has been passed on 19.2.1998 against him. He had been obtaining certified copies of various statements recorded by the trial court and, moreover, his interest was being watched by the other contesting defendants and, therefore, there is hardly any sufficient cause for setting aside the ex-parte order in its entirety. 6. I do not subscribe to the argument of the counsel for respondents. Every litigant has an independent cause to file an application under Order 9 Rule 7, CPC. The point for determination is when a lawyer pleads no instructions on behalf of his client, what is the duty of the court in these circumstances. At the cost of repetition, it can be said that the duty enjoined upon the court is to issue notice to the client so that he may be able to defend and watch his interest. 7. In this view of the matter, the present revision is allowed by setting aside the impugned order dated 29.5.1999 and directions are given to the Addl. Civil Judge (Sr. Divn) to allow the petitioner to participate in the proceedings. He shall be permitted to file written statement. If a fresh issue is required to be framed, it should be framed. The petitioner shall pay a sum of Rs. 4,000/- by way of conditional costs for setting aside the ex-parte order. If the costs are not paid before the trial court on the next date of hearing, the present revision shall be deemed to have been dismissed. The parties, through their counsel, are directed to appear before the trial court on 1.8.2000. Revision allowed.