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2007 DIGILAW 414 (RAJ)

Ramesh Chand v. Janaknandan Saxena

2007-02-26

R.S.CHAUHAN

body2007
JUDGMENT 1. - The appeal is filed against the order dated 3.12.2005. passed by the District Judge, Tonk whereby the learned Judge has dismissed the application under Order 9 Rule 13 of the Civil Procedure Code (henceforth to be referred to as 'the Code', for short) filed by the appellant. 2. The brief facts of the case are that the plaintiff-respondent filed a civil suit for specific performance of a contract dated 27.2.1999 which was allegedly executed by the appellant. The appellant filed his written statement in which he denied the execution of the alleged agreement to sell. However, after the evidence of both the parties was recorded, on 29.3.2000 the appellant's counsel pleaded "no instructions". Therefore, the learned trial court proceeded ex-parte against the appellant. Eventually, on 1.4.2000, an ex parte judgment and decree was passed in favour of the plaintiff-respondent and against the defendant-appellant. Once, the appellant came to know about the ex-parte judgment and decree, on 24.7.2001 he filed an application under Order 9 Rule 13 of the Code for setting aside the ex-parte judgment and decree. According to his application, the appellant was residing at Ratlam in M.P. Therefore, on his behalf, he engaged the services of an advocate. However, on 29.3.2000, the advocate fell ill. Therefore, his colleague pleaded "no instructions" on behalf of the appellant. But his lawyer did not inform him either about the lawyer's pleading "no instructions", or about the commencement of the exparte proceedings. Therefore, the appellant had no information or knowledge about the ex-parte proceedings having commenced against him. It was only on 9.7.2001 when one Babulal informed him about the ex-parte judgment and decree, that existence of the ex-parte judgment and decree came to his knowledge. Immediately, on 24.7.2001 he filed the said application under Order 9 Rule 13 of the Code along with an application under Section 5 of the Limitation Act. 3. The plaintiff-respondent filed his reply to the said application and pleaded that the case was fixed for final hearing on numerous dates. However, despite the number of opportunities being given, neither the appellant, nor his counsel appeared before the trial court. Therefore, the trial court had rightly passed the ex-parte judgment and decree in favour of the respondent. After hearing both the parties, as stated above, the learned Judge dismissed the application under Order 9 Rule 13 of the Code. However, despite the number of opportunities being given, neither the appellant, nor his counsel appeared before the trial court. Therefore, the trial court had rightly passed the ex-parte judgment and decree in favour of the respondent. After hearing both the parties, as stated above, the learned Judge dismissed the application under Order 9 Rule 13 of the Code. Hence, this appeal before this Court. 4. Mr. Praveen Jain, the learned counsel for the appellant, has argued that since the defendant was a resident of Ratlam in M.P., he was not aware of the court proceedings pending in Rajasthan. It was the duty of his advocate to keep him informed. However, the advocate neither informed him about his stating before the court that he has "no instructions" from the client, nor about the commencement of the ex parte proceedings against him. Hence, he should not be made to suffer for the fault of his lawyer. Secondly, that the learned Judge has erroneously concluded that the matter is covered by Order 17, Rule 2 of the Code. In fact, the case is one under Order 9, Rule 13 of the Code. Therefore, the ex-parte judgment and decree should have been set aside under Order 9, Rule 13 of the Code. 5. On the other hand, Mr. G.C. Swarnkar, the learned counsel for the respondents, has vehemently argued that the suit was filed on 21.8.1991. The evidence of the plaintiff was over on 11.8.1994. Till 13.3.1997, the case was pending for recording the evidence of the appellant. His evidence was finally recorded on 31.7.1998 and since then the case was hanging fire for final argument. The appellant was granted twelve opportunities for arguing the case finally. On 31.7.1998, the final arguments on behalf of the plaintiff were heard. Subsequently, the respondent moved an application for being permitted a last opportunity for the final arguments. The learned trial court granted one more opportunity on 1.8.1998. Even on 1.8.1998, the respondent did not argue the case finally. Even after this, sixteen opportunities were also granted to the respondent for the same purpose. But, he failed to do so. Eventually, on 29.3.2000 his counsel pleaded "no instructions". After having given the respondent a large number of opportunities to argue the case finally, it was only on 1.4.2000 that the ex-parte proceedings were commenced against the appellant. Even after this, sixteen opportunities were also granted to the respondent for the same purpose. But, he failed to do so. Eventually, on 29.3.2000 his counsel pleaded "no instructions". After having given the respondent a large number of opportunities to argue the case finally, it was only on 1.4.2000 that the ex-parte proceedings were commenced against the appellant. During this period of three years, from 1997 till 2000, the appellant was quite aware of the fact that the proceedings were pending. And yet, he chose not to argue the case finally. Thus, the learned trial court has validly rejected his application under Order 9 Rule 13 of the Code. 6. We have heard the learned counsel for the parties and have perused the impugned order. 7. Merely because a litigant has hired the services of the lawyer, the litigant is not absolved his responsibility of following the progress of his case. It is for the litigant to protect his interests and rights. Thus, he has a duty to contact the lawyer in order to find out the systematic progress of the proceedings. It is extremely easy for the litigant to place the blame squarely on the shoulders of his lawyer. But such a plea cannot be permitted as it would create havoc in the legal system. Moreover, from 1997 till 2000, for three long years the appellant had shown interest in the case. Thus, he cannot plead his ignorance about the pendency of the case. He was duty bound to see that the case was argued finally before the trial court. A bare perusal of the facts narrated above clearly reveals that the trial court had been more than generous in granting the adjournment to the appellant and his counsel. Since the court cannot keep waiting indefinitely for the litigant to commence the arguments finally, the learned Judge was certainly justified in rejecting the application under Order 9 Rule 13 of the Code. 8. Even if, the contention of the learned counsel for the appellant is accepted that the learned Judge has erroneously concluded that the case is covered under Order 17 Rule 2 Civil Procedure Code of the Code whereas it should have been concerned under Order 9 Rule 13 of the Code no difference would be made in the present case. 8. Even if, the contention of the learned counsel for the appellant is accepted that the learned Judge has erroneously concluded that the case is covered under Order 17 Rule 2 Civil Procedure Code of the Code whereas it should have been concerned under Order 9 Rule 13 of the Code no difference would be made in the present case. For, Order 9 Rule 13 of the Code the appellant has to show "sufficient cause", for his non-appearance before the court. In the present case, the appellant has not been able to prove any "sufficient cause" for his non-appearance before the court. Therefore, the impugned order is both legal and valid. 9. In the result, there is no force in this appeal. It is, hereby, dismissed. There shall be no order as to costs.Appeal dismissed. *******