JUDGMENT 1. The appellant has come forward with this appeal being aggrieved by the ex-parte judgment and decree dated 10.5.2006 passed by the 1st Additional District Judge, Harda in HMC No. 10-A/06 by which respondent's application under section 13 of the Hindu Marriage Act (in short 'the Act') has been allowed and decree for dissolution of marriage has been passed. 2. The facts giving rise to this appeal in short are that the respondent filed an application against the appellant under section 13 of the Act for divorce on the ground of cruelty and desertion. After receiving the notice of such application, appellant engaged the counsel for defending such case. Subsequently, without giving any intimation to the appellant, her counsel did not appear in the Court on dated 25.4.2006, resultantly the Court proceeded ex-parte against her and passed the decree for divorce by the impugned judgment. The same is under challenge in this appeal. 3. Shri L.N. Sankle, learned counsel for the appellant assailed the impugned judgment on the ground that as per provided system she engaged the counsel for defending such case but, without giving any intimation, her counsel did not appear before the Court on dated 25.4.2006. The Court without examining the reasons regarding absence of her and of her counsel, and also without issuing any fresh notice of hearing proceeded ex-parte against her on the aforesaid date. In pursuance of it, passed the decree for dissolution of said marriage. He further said that whenever any counsel seeks withdrawal from any case or does not appear before the Court, then the Court must record proper reasons for its withdrawal or non-appearance and if the litigant is not present before the Court then fresh notice for hearing of the case should be issued to such litigant. Such procedure was not followed by the trial Court, hence the aforesaid ex-parte judgment and decree are not sustainable and prayed for remitting back the case to trial Court for fresh disposal on merits by setting aside the impugned judgment and decree. 4. By responding the aforesaid arguments Shri S.K. Gangrade and Shri U.K. Shukla, learned counsel for the, respondent justified the impugned judgment and decree and said that the appellant was duly noticed by the Court and her counsel also appeared in the Court. Subsequently, on account of non-appearance of the appellant and her counsel, the case was proceeded ex-parte. 4. By responding the aforesaid arguments Shri S.K. Gangrade and Shri U.K. Shukla, learned counsel for the, respondent justified the impugned judgment and decree and said that the appellant was duly noticed by the Court and her counsel also appeared in the Court. Subsequently, on account of non-appearance of the appellant and her counsel, the case was proceeded ex-parte. In that way, the trial Court has not committed any error, infirmity or perversity in passing the impugned judgment and decree. Thus, the same does not require any interference at this stage. 5. Having heard the counsels, after going through the record of the trial Court and the impugned judgment. I am of the considered view that the trial Court has committed an error in proceeding and passing ex-parte decree against the appellant. It appears from the proceedings dated 23.2.2006 on which the counsel engaged by the appellant appeared in the case and took adjournment. Subsequent to this date, he also appeared on 13.3.2006, 27.3.2006 and 19.4.2006. On 25.4.2006, he did not appear, on which, the case was proceeded ex-parte against the appellant and resultantly the decree of divorce has been passed on dated 10.5.2006. It does not reflects from the proceedings dated 25.4.2006 that any sufficient cause regarding non-appearance of the appellant or her counsel was inquired and recorded by the trial Court, even the fresh notice was also not directed to her. It is settled proposition of law that if duly engaged counsel, without giving any intimation to his client, does not appear in the Court on his behalf and case proceeds ex-parte and in continuation of it, ex-parte decree is passed against such party, then, such affected person should not suffer because of the fault of the Advocate. This question was answered by the apex Court in the matter of Rafiq and another v. Munshilal and another [ AIR 1981 SC 1400 ] in which it was held has under: "3...............The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However we cannot be a party to an innocent party suffering injustice merely because his chosen Advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law................. ......" 6. If the counsel engaged by the party without any intimation does not appear in the Court, then the Court is duty bound to examine and record the reasons regarding such non-appearance and further by fixing a date, issue fresh notice to the party whose counsel did not appear or pleaded no instructions or taken withdrawal from the case without intimation to his party. Such question is answered by the apex Court in the matter of Tahil Ram Issardas Sadarangani and others v. Ramchand Issardas Sadarangani and another [ AIR 1993 SC 1182 ] in which it was held as under: "4. It is not disputed in the present case that on March 15, 1974 when Mr. Adhia, Advocate withdrew from the case, the petitioners were not present in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adhia withdrew from the case, the interests of justice required, that a fresh notice for actual date of hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer." On earlier occasion, this Court has also expressed the similar view in the matter of Benibai (Smt.) v. Smt. Champabai [ 1996 JLJ 436 ] in which it was held as under: "7............It is to be seen that Shri Lokras appeared in the Court and pleaded no instructions. In my opinion, it is always the duty of a counsel before pleading no instructions to inform the party that for a particular reason he shall not be appearing in the case and may plead no instructions. The confidence deposed by parties in the counsel is most important. A person who is not present in Court pre-supposes that because of engagement of a counsel his interest would be properly looked after. It is the duty of a counsel to inform him before he proceeds to plead no instructions. If Shri Lokras had pleaded no instructions it was the duty of the Court also to inquire from Shri Lokras as to why and under what circumstances he was pleading no instructions. The Court cannot be a silent spectator to the scene which is staged in the Court. If a counsel declined to set up to his duty then the Judge is posed to the duty to the judicial administration. The judicial conscience of the Judge should always be satisfied before the permits a lawyer either to withdraw or to retire from the case. In the instant case, it does not appear from the proceedings that the learned Judge had taken all necessary steps to ensure that the counsel had sufficient reason not to appear for the party who engaged him or to plead no instructions. If a Judge in disregard of duties permits a lawyer to withdraw from the case then he is virtually violating the principle of justice. A party who deposes confidence and relies on counsel is entitled to be under the belief that his interest would be looked after properly by the counsel. A Judge ordinarily should not permit a lawyer to plead no instructions unless the lawyer satisfies the judicial conscience of the Court that for the compelling reasons he was posed to plead no instructions. In the instant case on that short ground alone the ex -parte order passed on 27.6.1990 is liable to be set aside." 7. In view of the aforesaid principles on examining the present case, it is apparent that no such procedure was followed by the trial Court. It did not record the reason regarding non-appearance of the appellant counsel and also did not issue fresh notice to the appellant by fixing a further date of hearing. In view of the aforesaid principles on examining the present case, it is apparent that no such procedure was followed by the trial Court. It did not record the reason regarding non-appearance of the appellant counsel and also did not issue fresh notice to the appellant by fixing a further date of hearing. I have not found any evidence showing the appellant was intimated by her counsel that he will not appear to defend her case on the date when the case was proceeded ex-parte. Under such circumstance, it is held that trial Court committed grave error in proceeding ex-parte against appellant without giving fresh notice to her and in pursuance of it also committed error in passing the impugned ex-parte judgment and decree without extending the opportunity of hearing to the appellant. The same is not sustainable under the law. 8. Therefore, by allowing this appeal, the impugned judgment and decree are set aside and the case is remitted back to the trial Court with a direction to decide afresh by extending opportunity of hearing to the parties in accordance with law. The respondent by bearing his own cost of this appeal shall pay Rs. 3,000/- to the appellant the cost of this appeal. Decree be drawn-up accordingly. 9. The parties are directed to appear before the trial Court firstly on dated 10.9.2007 for further proceedings. Office is directed to sent the record immediately to the trial Court for fresh trial in compliance of this judgment. 10. The appeal is allowed as indicated above.