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2010 DIGILAW 1895 (ALL)

Nand Gopal v. Moti Chand

2010-07-01

RAKESH TIWARI

body2010
JUDGMENT 1. Heard counsel for the appellant and perused the record. 2. Original suit no. 227 of 1988, Moti Chand and others Vs. Nand Gopal, was filed by the plaintiff respondent for specific performance of agreement dated 27.7.1987 for executing the sale deed of plot no. 103 A, area 906 kari and 103 B, area1.281 kari, total area 2.187 kari, for sale consideration of Rs. 30,000/-. 3. The suit was contested by the defendant appellant by denying the plaint allegations. Execution of agreement to sell dated 27.7.1987 as claimed by the plaintiff respondent was also denied, inter alia that his signatures of the sale deed are not his. The suit was also contested on the ground that value of the land is in lacs whereas it has been sold undervalued at Rs. 30000/- only and that defendant appellant had no other source of livelihood except the land in question on which his family is fully dependent upon. 4. The suit was decreed by the trial court vide judgment and order dated 10.9.1992. Aggrieved the defendant appellant filed appeal no. 499 of 1993 in the court of District Judge, Azamgarh. The appeal was listed on 21.4.1997 before Ist Additional District Judge, Mau. The counsel for the appellant submits that no notice was issued to the appellant in the civil appeal rather his counsel had accepted the notice who informed the court that his client is not coming, on which the appeal aforesaid was dismissed in default. 5. Counsel for appellant further submits that the appellant had gone to Calcutta to earn his livelihood and prior to it he had instructed Sri Abdul Hafiz, the clerk of the counsel whom he had engaged to defend his case, to inform him whenever he is required to be present in the proceedings but as the clerk died during pendency of the suit, hence he could not know about hearing of the appeal. It is under these circumstances that the case was dismissed in default and he came to know about its decision when execution case to appeal no. 30 of 1997 was filed and notices were received by him. 6. It is urged that on receipt of the notices in the execution case, the defendant appellant filed a restoration application alongwith application under section 5 of the Indian Limitation Act for condoning the delay in filing the restoration application. 30 of 1997 was filed and notices were received by him. 6. It is urged that on receipt of the notices in the execution case, the defendant appellant filed a restoration application alongwith application under section 5 of the Indian Limitation Act for condoning the delay in filing the restoration application. The grounds in both the applications are said to be the same. It is submitted by the counsel for appellant that application under section 5 of the Limitation Act, was allowed on payment of cost of Rs. 2000/- whereas the restoration application filed on the same grounds, has been rejected by Additional District Judge, court no. 1, Mau vide order dated 22.5.2010 which has given cause to the appellant for filing present First Appeal From Order. 7. It appears from the arguments and record in this appeal that application under section 5 of the Limitation Act as well as the restoration application were filed on the same grounds. The court below allowed the application under section 5 on 14.5.2007 after considering the question of delay in filing the restoration application but has rejected the restoration application which, according to the counsel for appellant, is a grave illegality. It also appears that one of the grounds taken by the defendant appellant in the court below was that as he was not residing at Mau, he had no knowledge of dismissal of the appeal since he had gone to Calcutta to earn his livelihood and that he had instructed the clerk of the advocate engaged by him to inform him whenever his presence is required but due to his sad demise, he could not receive any information resulting into order dated 21.4.1997 dismissing the appeal in default. 8. It is an admitted fact on record that the defendant appellant had engaged a counsel to represent him in the court below. It is also admitted that he had filed two applications on same grounds i.e. one under section 5 of the Limitation Act and the other for restoration of the appeal by setting aside the order dated 21.4.1997. The application under section 5 was allowed whereas the restoration application was rejected. In these circumstances, the moot question before the Court is whether any illegality has been committed by the court below while rejecting the restoration application. 9. The application under section 5 was allowed whereas the restoration application was rejected. In these circumstances, the moot question before the Court is whether any illegality has been committed by the court below while rejecting the restoration application. 9. Once an Advocate files his power on behalf of his client, he has to conduct the case. Admittedly, the defendant appellant had given power/Vakalatnama to his Advocate for representing him in the case i.e. the Advocate had stepped into the shoes of the appellant. Case of the defendant appellant is not that his counsel had no knowledge of the date fixed in the case rather his case is that his counsel had knowledge but he had failed to inform the defendant appellant about the date fixed in the case and also that clerk of the advocate whom the appellant had instructed, died during pendency of the case. This is not a valid reason or a reason tenable in law for restoration of the case. It may be that grounds in the two applications are same or similar but both applications had different purpose and have to be viewed for the purpose for which they had been filed. The court had simply not found the reasons given in the application under section 5, to be sufficient but in order to give a hearing to the applicant to show that he had a case, had allowed the application under section 5 on payment of cost of Rs. 2000/-. As regards the restoration application is concerned, it was for the defendant appellant to establish before the court that cause shown in the application is sufficient for restoration of the case. In the circumstances, when counsel for the appellant had filed his power and had knowledge of the date fixed in the matter, it cannot be said that the plaintiff had no sufficient knowledge about proceedings of the case as he was acting through his counsel. Therefore knowledge to the counsel about the date fixed in the case would be knowledge of the date fixed in the case to the appellant also. Therefore knowledge to the counsel about the date fixed in the case would be knowledge of the date fixed in the case to the appellant also. Moreover, the instruction alleged to have been given by the appellant to the clerk of the Advocate to inform him whenever he is required to be present, does not mean that he would be informed of every date of hearing to enable him to come from Calcutta on every date to attend the case. If the counsel has failed to appear for any reason, it is a matter between the counsel and his client. The court below found the cause shown in the restoration application to be not sufficient and therefore has rightly rejected the restoration application. Both the applications had to be viewed with different angles for the purpose they had been filed. Merely because grounds in both the applications are same, does not make out a better case in favour of the appellant. The appellant has not brought on record as to when he went to Calcutta to earn his livelihood and why he was not vigilant to have enquired the dates in the case and as to whether his presence was required. It appears that he did not contact for a long long time his counsel appointed by him to defend his appeal in the court below. As a client it was incumbent upon him to have remained in touch of his advocate and ought to have informed him about his whereabouts rather than allegedly asking the clerk to inform him if his presence was required. In any case presence of the applicant was not required but it appears that as hehad not contacted his counsel over a length of period,hence the counsel appears to have informed the court that the appellant was not coming fo a long time which was a statement of fact by the appellant's counsel. 10. For the reasons stated above, in the opinion of this Court, the order impugned dated 22.5.2010 does not suffer from any illegality and no case for interference is made out. 11. The appeal is accordingly dismissed. No order as to costs.