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2008 DIGILAW 1410 (PNJ)

Ram Niwas v. Gita Devi

2008-08-19

VINOD K.SHARMA

body2008
JUDGMENT Vinod K. Sharma, J. (Oral) - The petitioner by way of this revision petition has challenged the order passed by the learned Appellate Authority vide which an application moved by the petitioner under Order 9 Rule 13 of the Code of Civil Procedure (for short the Code) has been ordered to be dismissed. 2. The respondent landlord filed a petition under section 13 of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (for short the Act) for ejecting the petitioner from the space 6 x 10 on which the petitioner has installed a wooden Khoka situated on Mohalla Purani Sarai (Mahavir Marg), Narnaul. 3. The said petition was allowed and the petitioner preferred an appeal against the order of eviction before the learned Appellate Authority. 4. On 13.9.2000, the learned Appellate Authority was pleased to pass the following order : "Sh. V.K. Sanghi, Advocate for the appellant has pleaded no instruction and stated that his client has taken the brief from him to engage some other counsel. His statement to this effect has been recorded separately. The appellant is not present, nor anybody has put in appearance on his behalf. Case called several times since morning. It is already 12.10 P.M. This appeal is dismissed in default for want of prosecution. File be consigned to the records after due compliance. The records of the trial court be sent back." 5. Immediately after coming to know about the order the petitioner moved an application under Order 9 Rule 13 of the Code for restoration of his appeal titled Ram Niwas v. Gita Devi. The petitioner claimed that Shri V.K. Sanghi, Advocate was engaged by the petitioner to represent him in the appeal. The petitioner also used to appear in the court on each and every date of hearing. It was the case of the petitioner that brief was taken from Shri V.K. Sanghi, Advocate as he wanted to engaged other counsel to argue the appeal. However, the petitioner fell ill and could not appear on 13.9.2000. It was on 16.9.2000 when the petitioner went to his Advocate, Shri V.K. Sanghi, he came to know about the passing of the order dated 13.9.2000. However, the petitioner fell ill and could not appear on 13.9.2000. It was on 16.9.2000 when the petitioner went to his Advocate, Shri V.K. Sanghi, he came to know about the passing of the order dated 13.9.2000. It was the case of the petitioner that he had not instructed Shri V.K. Sanghi, Advocate to plead no instructions and thus, it was claimed that the absence of the petitioner on the date fixed was not intentional. It was also pleaded that once the court had accepted the plea of no instructions by the counsel the court was required to issue notice to the petitioner. 6. The application was opposed on the plea that the petitioner was interested in prolonging the appeal and the present application has been filed on false pleas. 7. Learned trial court came to the conclusion that the application was not supported by any affidavit either of the petitioner or his counsel. The learned Appellate Authority also came to the conclusion that no medical certificate was produced on record to show that he could not be present on account of illness. The plea of the petitioner that notice was required to be issued to the petitioner in view of the stand taken by his counsel was rejected by placing reliance on the judgment of this Court in the case of Bhairo Parshad v. Karam Chand and another, (2000-1) PLR 189. 8. However, it may be noticed that the judgment relied upon by the learned Appellate Authority in rejecting the plea of the petitioner was not applicable as in the said case learned counsel for the petitioner had shown his inability to pay the costs of adjournment and he pleaded no instructions. The evidence on behalf of the defendant was also not present or summoned and in those circumstances the defence was struck off. It was also noticed that the application was beyond limitation. But, no such facts arise in the present case. 9. The learned counsel for the petitioner vehemently contended that in view of the law laid down by this Court in the case of Kirpal Kaur and others v. Kulwant Kaur and others, 1993 PLJ 607 it was incumbent upon the court to have issued notice to the petitioner when the counsel pleaded no instructions. 9. The learned counsel for the petitioner vehemently contended that in view of the law laid down by this Court in the case of Kirpal Kaur and others v. Kulwant Kaur and others, 1993 PLJ 607 it was incumbent upon the court to have issued notice to the petitioner when the counsel pleaded no instructions. It is also the contention of the learned counsel for the petitioner that the presence of the petitioner was not required on every date of hearing in appeal and the petitioner had to rely upon his counsel and once he pleaded no instructions a notice ought to have been given to him. 10. In the present case the application for setting aside ex parte order was immediately moved on coming to know about the same and good reasons for non- appearance were given. In case there was any doubt about the stand the court could have famed an issue and allowed the parties to lead evidence in support of their contentions. The court was not justified in dismissing the application especially when the petitioner had taken steps to contest his appeal by engaging a counsel who was present and pleaded no instructions. Finding of the learned Appellate Authority that as the petitioner was aware of the date no notice was required to be given in the facts of the present case cannot be accepted. The judgment of this court in the case of Kirpal Kaur and others v. Kulwant Kaur and others (supra) was based on the judgment of Honble Supreme Court in the case of Tahil Ram Issardas Sadarangani v. Ram Chand Issardas, AIR 1993 SC 1182 wherein the Honble Supreme Court was pleased to lay down that where the counsel pleads no instructions it is the duty of the court to issue notice to the said party. 11. Mr. Ajay Jain, learned counsel appearing on behalf of the respondent opposed this revision petition by placing reliance on the judgment of this court in the case of Suresh Kumar v. Smt. Daryal and others, (1996-3) PLR 379 to contend that if counsel pleads no instructions then there is no provision to issue fresh notice to the party which is represented by him. 12. 12. However, the reading of the judgment would show that Honble Division Bench of this Court did agree with the judgment in the case of Kirpal Kaur and others v. Kulwant Kaur and others (supra) but held that in the said case it was proved on record that there is no fault of the party in not being present. Present case is also the one where the petitioner showed reasons for his non- appearance on the date fixed. A party cannot be allowed to suffer for the fault on the part of his counsel. The authorities relied upon by the respondent, therefore, would have no application to the facts of the present case. 13. For the reasons stated above this revision is allowed. The impugned order is set aside. The parties through their counsel are directed to appear before the learned Appellate Authority on 25.9.2008. 14. Keeping in view the fact that the appeal is pending since long, learned Appellate Authority will dispose of the appeal on merit expeditiously preferably within 3 months from the date of the receipt of the certified copy of this order. Petition allowed.