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2006 DIGILAW 9 (RAJ)

Surajbhan v. Laxmi Narayan

2006-01-02

DALIP SINGH

body2006
JUDGMENT 1. - The revision petition has been filed by the defendant- petitioner challenging the order passed by the learned lower appellate court dated 27.7.1995 dismissing the appeal filed by the defendant against the order passed by the trial court dated 20.3.1986 whereby the application dated 16.7.1982 filed under Order 9 Rule 13 C.P.C. by the defendant-petitioner for setting aside ex parte decree dated 5.2.1981 has been dismissed. 2. The learned counsel for the defendant-petitioner has submitted that the learned courts below erred in holding that the defendant-petitioner had been served after the proceedings were re-started after the decision of the revision petition No. 133/1973 filed before the High Court was decided on 10.1.1978. It has come on record that after the decision of the revision petition No. 133/1973 dated 10.1.1978 the file was received by the learned trial court on 24.1.1979. On the said date the counsel of all the parties were present. Thereafter on 3.5.1979 the issues were framed in the presence of the parties and next date fixed on 9.7.1979. Subsequently the case was transferred by the order of the District Judge to the court of AMJM, Alwar before the next date i.e. 9.7.1979. Upon the aforesaid transfer the defendant did not appear in the transferee court and as such the notice was ordered to be issued to the defendant. The plaintiff, however, appeared on 19.11.1979 one of the defendant Prabhu appeared but thereafter even defendant Prabhu failed to appear before the learned trial court. Consequently on 15.2.1979 the learned trial court ordered the proceedings against the defendant Prabhu to proceed ex parte. Two more dates were fixed. On 29.9.1980 it was recorded in the order sheet that the notices of defendant Ajayab Singh have been served. But he had not appeared hence the case was ordered to proceed ex parte against the defendant Ajayab Singh. On 26.11.1980 the court ordered that the defendants No. 3, 5, 6 and 7 be served also through their counsel Shri Ramdhan Advocate. On 15.12.1980 it was recorded that the notices have been served on Shri Ramdhan Advocate counsel for the defendant-petitioner but he was not present and the case was posted on 17.1.1981. On 26.11.1980 the court ordered that the defendants No. 3, 5, 6 and 7 be served also through their counsel Shri Ramdhan Advocate. On 15.12.1980 it was recorded that the notices have been served on Shri Ramdhan Advocate counsel for the defendant-petitioner but he was not present and the case was posted on 17.1.1981. Shri Ramdhan Advocate counsel for the defendant- petitioners did not appear despite the service of notices and the case was called several times as such it was ordered for the suit to proceed exparte against the defendant-petitioners also. The learned trial court after recording the evidence of the plaintiff decreed the suit on 5.2.1981. 3. After the aforesaid suit was decreed on 5.2.1981 the defendant moved an application on 16.7.1982 under Order 9 Rule 13 C.P.C. to set aside the ex parte decree. The learned trial court held that there was no sufficient cause for setting aside the ex parte decree dated 5.2.1981. It also held that the application moved on 16.7.1982 under Order 9 Rule 13 C.P.C. had been filed beyond the period of limitation provided for an application under Order 9 Rule 13 Civil Procedure Code. The learned trial court was of the view that the service on Shri Ramdhan Advocate the counsel for the defendant-petitioners was sufficient and consequently dismissed the application. 4. The defendant then preferred an appeal and the learned Appellate Court dismissed the appeal also. Hence this revision petition. 5. It is contended on behalf of the defendant-petitioners that Shri Ramdhan Advocate ceased to be counsel of the defendant and in his place one Shri Satish Kumar had been engaged. The submission of the learned counsel for the petitioner is that in view of the fact that subsequently Shri Satish Kumar Advocate has been engaged, the service upon Shri Ramdhan Advocate could not be treated as sufficient service upon the defendant-petitioners. It has been submitted that the application under Order 9 Rule 13 C.P.C. deserves to be allowed and the ex parte decree dated 5.2 1981 set aside. 6. It has been submitted that the application under Order 9 Rule 13 C.P.C. deserves to be allowed and the ex parte decree dated 5.2 1981 set aside. 6. The learned counsel for the respondent on the other hand has submitted that in the instant case it is not in dispute that Shri Ramdhan Advocate had been engaged by the defendant-petitioner and he accepted the notices on their behalf hence the said service was sufficient in the terms of Order 3 Civil Procedure Code as Order 3, Rule 5 contemplated that the service of the process on the Pleader is sufficient service. It has further been submitted that in the instant case even assuming that Shri Satish Kumar Advocate was engaged as a counsel subsequently there was no material on record to show that the defendant had applied for leave of the court to determine the appointment of Shri Ramdhan Advocate. In such circumstances the service upon Shri Ramdhan Advocate the counsel of the defendant-petitioners was rightly held as sufficient service. 7. I have given thoughtful consideration to the rival submissions. In the instant case it is a fact that after revision petition No. 133/1973 was decided by the High Court on 10.1.1978 the record was remitted to the learned trial Court for proceeding with the trial. After returning of the record both the parties appeared before the court below on several dates and thereafter it is only after the case was transferred to the court of AMJM, Alwar that the defendant-petitioners chose not to appear on the date fixed i.e. 9.7.1979 which had been fixed by the trial court on 3.5.1979 in the presence of the parties for the evidence of the plaintiff, it was, therefore, incumbent upon the parties to have appeared before the court where the suit was pending originally on 9.7.1979. Had the petitioners appeared the fact about the transfer of the case would have come to the knowledge of the parties. The defendant-petitioners have chosen to remain silent about this fact. In order to show sufficient cause the party concerned must show bona fides. In this case there is a lack of bona fides on the part of the defendant-petitioners as there is no mention about the fact that what the defendants came to know on 9.7.1979 when they went to appear in the court on the said date. In order to show sufficient cause the party concerned must show bona fides. In this case there is a lack of bona fides on the part of the defendant-petitioners as there is no mention about the fact that what the defendants came to know on 9.7.1979 when they went to appear in the court on the said date. It is settled law that negligence starts where bona fides ends. Consequently, it cannot be said to be a bona fide application on the part of the defendant-petitioners. 8. The present one is not a case where the parties had not been served with the summons of the suit from the very inception but the defendant- petitioners failed to appear in the proceedings before the transferee court having appeared earlier on several dates prior to the transfer of the suit and the next dated 9.7.1979 having been fixed in their presence. In the present facts and circumstances if the court issued notices to the pleader it is permissible under Order 3 Rule 5 Civil Procedure Code and there is no jurisdictional error in the aforesaid process so as to warrant interference in the revisional jurisdiction under Section 115 Civil Procedure Code. 9. Apart from the above the fact that Shri Ramdhan Advocate was served is also not in dispute. It is not in dispute that Shri Ramdhan had been engaged by the defendant-petitioners as their counsel and also that his authority for appointment as a counsel had not been determined by the defendant in the manner as specified under Rule 4ORDER3 Civil Procedure Code. Rule 4ORDER3 C.P.C. reads as under:- "4. Appointment of pleader. - (1) No pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writing, signed by such person or by his recognised agent or by some other person duly authorised by or under a power-of-attorney to make such appointment. (2) Every such appointment shall be [filed in Court and shall, for the purposes of sub-rule (1), be], deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the clients. Explanation : xxxxxxxxxxx (3)xxxxxxxxxxxxxxxxxxxxxxxxxxx (4)xxxxxxxxxxxxxxxxxxxxxxxxxxx (5)xxxxxxxxxxxxxxxxxxxxxxxxxxx." 10. In the present case it is not disputed that Shri Ramdhan Advocate was counsel engaged by the defendant-petitioners who had filed his Vakalatnama (Authority) to act on behalf of the defendant-petitioners. No such procedure as provided under Sub-Rule (2) of Rule 4ORDER3 had been adopted by the defendant-petitioners assuming that they had subsequently engaged Shri Satish Kumar Advocate as their counsel. In view of the aforesaid since the procedure as required by Sub-Rule (2) had not been followed Shri Ramdhan Advocate continued to be the counsel (pleader) for the defendant-petitioners and the court was justified in issuing the notices for the appearance of the defendant-petitioners before it to their counsel, said Shri Ramdhan Advocate. In the instant case it is not disputed Shri Ramdhan Advocate was served with the notices for appearance before the court on the date fixed but he failed to appear or as he even failed to inform them, contended by the petitioners that is a matter between the defendant-petitioners and their counsel and no infirmity can be found with the procedure which was adopted by the court more particularly in view of the facts which have been mentioned above. In the facts and circumstances the notices for appearance before the transferee court were issued only by way of abandoned caution and not as a rule. It has already been held that the defendant-petitioners were negligent in pursuing the suit and as such they cannot claim that there was any illegality committed by the court.11. Consequently, the revision petition is liable to be dismissed. There is yet another impediment so far as the defendant-petitioners are concerned. The defendant No. 1 and 2 Ajayab Singh and Bhuman Singh are not arrayed as parties before the court. In the absence of these defendants the decree dated 5.2.1981 by which these defendants are bound cannot be set aside as they are the vendors who are liable to execute the sale deed in favour of the plaintiff and the present petitioners are the subsequent purchasers from them. In the absence of the defendants No. 1 and 2 the ex parte dated 5.2.1981 cannot be set aside.12. For all these this revision petition is dismissed. There shall be no order as to costs.Petition dismissed. *******