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2010 DIGILAW 809 (GAU)

Anabik Gupta v. Swapan Saha

2010-10-11

I.A.ANSARI

body2010
JUDGMENT I.A. Ansari, J. 1. Late Arunendu Kishore Gupta @ Arun Kumar Gupta, the predecessor-in-interest of the present Petitioners, instituted, as Plaintiff, Title Suit No. 179 of 1977, claiming himself to be the owner of the suit property and seeking a decree of eviction of the tenant, one Nirmalendu Chakraborty, on the ground that the said tenant was a defaulter in respect of payment of rent and that the said tenant had also sublet a part of the tenanted premises to one Swapan Saha, i.e., opposite party No. 1 herein. The suit having been decreed, the said tenant filed a title appeal, which gave rise to Title Appeal No. 2 of 1979, which was allowed, whereupon the predecessor-in-interest of the Petitioners instituted a suit against the said Nirmalendu Chakraborty in accordance with the provisions of the Assam Urban Areas Rent Control Act, 1972, for eviction of the said Nirmalendu Chakraborty. The suit gave rise to Title Suit No. 212/1979, which was decreed in favour of the Plaintiff and, in course of time, the same was put into execution in Title Execution Case No. 9/1980. 2. While the Execution Case No. 9/1980 was pending, the opposite party No. 1 herein, namely, Swapan Saha, instituted a suit, which gave rise to Title Suit No. 29/1980, against the said Arunendu Kishore Gupta, (i.e., predecessor-in-interest of the present Petitioners), as Defendant, praying for a direction to be issued to the said predecessor-in-interest of the Plaintiff-Petitioners to execute a lease deed in favour of the Plaintiff (i.e., Swapan Saha), for declaration that the decree, obtained in Title Suit No. 212/1979 aforementioned, was fraudulent and for permanent injunction restraining eviction of the Plaintiff, (i.e., Swapan Saha) from the suit premises. During pendency of the suit, namely, Title Suit No. 29/1980, Arunendu Kishore Gupta died and the present Petitioners came to be substituted in his place as Defendants. Likewise, the present Petitioners also got themselves substituted in Title Execution Case No. 9/1980 as decree-holders. When the Title Suit No. 29/1980, filed by the said Swapan Saha, (i.e., opposite party No. 1 herein) was dismissed, he filed an appeal, which gave rise to Title Appeal No. 100/1985. The appeal also came to be dismissed, whereupon a second appeal was preferred by the said Swapan Saha, which gave rise to Second Appeal No. 172/1987, but the second appeal too ended in dismissal. 3. The appeal also came to be dismissed, whereupon a second appeal was preferred by the said Swapan Saha, which gave rise to Second Appeal No. 172/1987, but the second appeal too ended in dismissal. 3. Still dissatisfied, the opposite party No. 1 herein, namely, Swapan Saha, carried the matter to the Supreme Court by filing an application seeking special leave for appeal. This application gave rise to Special Leave Petition (Civil) No. 12737/95, which came to be finally dismissed by order, dated 25.1.1995. In the said special leave petition, the opposite party No. 1 herein stated that during pendency of the Second Appeal No. 172/1987, he (Swapan Saha), came to learn that one Sukesh Ranjan Dey, (i.e., the opposite party No. 2 herein), was also a co-owner of the suit premises along with the present Petitioners and that the opposite party No. 1 herein had purchased the share of the said Sukesh Ranjan Dey, in the said property, by a registered sale deed on 16.9.1988. 4. Thereafter, the present Petitioners instituted another suit, which gave rise to Title Suit No. 66/1991, against the present opposite parties seeking, inter alia, a decree declaring that said Sukesh Ranjan Dey, not being a co-sharer of the suit land, had no saleable interest in the suit property and/or possession therein, that the sale deed, dated 7.8.1988, executed by said Sukesh Ranjan Dey, in favour of said Swapan Saha, be declared illegal, void, collusive, inoperative and a mere paper transaction, which is not binding on the Plaintiffs, for setting aside the said sale deed and, alternatively, for declaring the Plaintiff's preferential right to acquire the land as mentioned in the schedule of the sale deed and for transferring the same to the Plaintiffs and for permanent injunction against the principal Defendants and for other incidental reliefs. 5. The opposite party No. 1 herein contested the present Petitioners' suit, namely, Title Suit No. 66/1991 aforementioned. 5. The opposite party No. 1 herein contested the present Petitioners' suit, namely, Title Suit No. 66/1991 aforementioned. After the parties had filed written statements, the opposite party No. 1 also raised a counter-claim, on 31.7.1995, seeking, inter alia, declaration of his right, title and interest over the land and a portion of the house, as described in the schedule of the counter-claim, confirmation of his possession thereof, declaration that the decree, passed in Title Suit No. 212/1979, was not binding upon him, declaration that the Plaintiffs' claim of preferential right is illegal and time-barred, and permanent injunction, restraining the Plaintiffs from disturbing his (opposite party No. 1) peaceful possession over the premises, as described in the counter-claim, and in carrying on the business of M/s. Swapan Shoe House and also from obtaining the delivery of possession thereof on the strength of the decree of Title Suit No. 212/1979. 6. The present Petitioners, as Plaintiffs, submitted their written statement against the said counter-claim, filed by the opposite party No. 1 herein, denying the case, which the opposite party No. 1 had set up in his counter-claim. In course of time, the opposite party No. 1 herein got his counter-claim amended. An additional written statement was, then, filed by the present Petitioners against the amended counterclaim, whereupon the suit came to be fixed for hearing, but the suit was dismissed, for non-prosecution, by order, dated, 21.1.2002. The Plaintiff-Petitioners, then, made an application, under Order DC, Rule 8 of the Code of Civil Procedure, 1908 ('Code of Civil Procedure '), for restoration of the suit. However, the application, so made, was rejected and the said rejection order was upheld by this Court by order, dated 29.7.2008, passed in CRP No. 188 of 2006. 7. When the counter-claim was pending for cross-examination of the witnesses of the opposite party, Sri P. Deshmukhya, counsel for the Plaintiff-Petitioners, filed a petition, on 29.1.2010, stating to the effect, inter alia, that the Plaintiff-Petitioners had taken away all their papers, documents/files from him as they had decided to engage another lawyer and that he (P. Deshmukhya) and Sri B.K. Acharyya, another counsel, had accordingly withdrawn from the suit. On considering the petition, so filed, the learned Munsiff No. 2, Cachar, Silchar, who was in seisin of the counter-claim, passed an order dispensing with the cross-examination of the Defendant, namely, Swapon Saha, (i.e., opposite party No. 1 herein) and fixed the counter-claim, on 20.3.2010, for cross-examination of further witness of the counter-claimant. 8. On the date so fixed, i.e., 20.3.2010, while the Defendant's counsel was present, none appeared on behalf of the Plaintiffs. The learned trial court, then, passed an order dispensing with the cross-examination of the Defendant's witness, closed the evidence of the Defendant's side and fixed the counter-claim, on 11.6.2010, for argument. Before the date, so fixed, and, to be precise, 12.7.2010, the Plaintiff-Petitioner No. 1, namely, Anamika Gupta, filed a petition, in the counter-claim, under Section 151 of the Code of Civil Procedure, which gave rise to Misc. Before the date, so fixed, and, to be precise, 12.7.2010, the Plaintiff-Petitioner No. 1, namely, Anamika Gupta, filed a petition, in the counter-claim, under Section 151 of the Code of Civil Procedure, which gave rise to Misc. Case No. 40/2010, with the prayer to adjourn the argument and give another opportunity to the Plaintiff-Petitioners to cross-examine PW1 and PW2 by reconsidering the orders, dated 29.1.2010 and 20.3.2010, aforementioned, the case set up by the Plaintiff-Petitioners, for seeking review or reconsideration of the orders, dated 29.1.2010 and 20.3.2010, and for giving them another opportunity to cross-examine the Defendant and his witness, may, in brief, set out as under: The Plaintiff-Petitioners had engaged Sri B.K. Acharyya, advocate, for conducting their case and had accordingly handed over all the relevant papers/files to him, but, suddenly, in January 2010, Sri Acharyya, Advocate, expressed his inability to conduct the suit and advised the Plaintiff-Petitioners to engage another lawyer; that the plaint-Petitioners are residents of Patharkandi in the district of Karimganj, which is about 90 kilometres away from Silchar town and, hence, it was not possible for them to frequently visit their counsel at Silchar; that in March 2010, the Plaintiff-Petitioners came to know that their engaged counsel had already withdrawn from their case, but the relevant papers/files remained with the said counsel and all the efforts made by the Plaintiff-Petitioners to obtain the papers/files from the said counsel did not yield any result; that thereafter, though the Plaintiff-Petitioners tried to engage another counsel, they found that no lawyer was interested to conduct the case without the relevant papers/documents and, thereafter, the Plaintiff-Petitioner No. 1 applied for certified copies of the plaint, written statement, counter-claim, evidence, orders, etc., which were received in May 2010, and it was after receipt of the said certified copies that they were able to engage, in June 2010, Sri P. Deb, advocate, as their counsel. 9. The above petition (Miscellaneous Case No. 40/2010) was resisted by the Defendant-opposite party No. 1 by filing a petition, whereupon the learned trial court heard the Plaintiff-Petitioners petition and, upon hearing, passed an order, on 10.8.2010, rejecting the petition. Aggrieved by the order, dated 10.8.2010, aforementioned the Plaintiff-Petitioners have, now, impugned the same in this revision. 10. I have heard Mr. G.N. Sahewalla, learned senior counsel, appearing on behalf of the Plaintiff-Petitioners, and Mr. Aggrieved by the order, dated 10.8.2010, aforementioned the Plaintiff-Petitioners have, now, impugned the same in this revision. 10. I have heard Mr. G.N. Sahewalla, learned senior counsel, appearing on behalf of the Plaintiff-Petitioners, and Mr. A.K. Goswami, learned senior counsel, appearing on behalf of opposite party No. 1, the name of the opposite party No. 2 having been struck off the record on the prayer made by the Plaintiff-Petitioner. 11. While considering the present revision, it needs to be noted that there were two orders, which the present Petitioners, as Plaintiffs, had sought to get reconsidered by their petition made on 12.7.2010. The said petition was considered, heard and disposed of by the order, dated 10.8.2010, which is the impugned order. 12. In the order, dated 10.8.2010, the learned trial court has held to the effect, inter alia, that though filed under the guise of Section 151, Code of Civil Procedure, the petition, which the Plaintiffs had so filed, was actually for review of the orders, dated 29.1.2010 and 20.3.2010, and this petition shall be treated as a petition, for review, under Order XLVII and not a petition under Section 151, Code of Civil Procedure and that the period of limitation, for making such a petition, is 30 days, whereas the petition has been made beyond the period of limitation of 30 days and that too, the ground, assigned for delay in making the application for review, is not satisfactory inasmuch as the Petitioners were not diligent, though they ought to have kept track of their case, and that their counsel had withdrawn from the suit on the ground that the Plaintiffs had taken away the papers from their counsel. 13. Before proceeding further, what is of immense importance to note is that a counter-claim stands, in the light of the provisions of Order VIII, Rule 6A, on the same footing as does a suit and, in the counterclaim, which a Defendant may file in a suit instituted against him, the Defendant stands on the footing of a Plaintiff and the Plaintiff of the suit on the footing of the Defendant. Hence, the provisions, contained in the Code of Civil Procedure, as regard suits, would apply, so far as possible, to counterclaims also. 14. Hence, the provisions, contained in the Code of Civil Procedure, as regard suits, would apply, so far as possible, to counterclaims also. 14. In the present case, the counter-claim was lying fixed, on 29.1.2010, for cross-examination of the Defendant and his witness and on that day, i.e., on 29.1.2010, the Plaintiffs' counsel filed the petition, as indicated above, withdrawing from the suit on the ground that the Plaintiffs had taken away the papers/documents of the case from their counsel. No notice, however, on the petition filed by the Plaintiffs counsel, was served on the Plaintiffs and no specific order was made by the learned trial court allowing the counsel to withdraw from the suit. Nonetheless, the court dispensed with the evidence of the Defendant by treating the Plaintiffs as absent in the counter-claim and fixed the counter-claim for cross-examination of the Defendant's witness on 20.3.2010. On the adjourned date, i.e., on 20.3.2010, finding the Plaintiffs and their counsel absent, the learned trial court dispensed with the cross-examination of the Defendant's witness too and fixed the counter-claim, for argument, on 11.6.2010, and it was on 11.6.2010 that a petition was filed by the Plaintiffs seeking reconsideration of the earlier two orders, dated 29.1.2010 and 20.3.2010, but the petition came to be rejected by the impugned order, dated 10.8.2010. 15. Let me, first, consider as to whether the order passed, on 29.1.2010, by the learned trial court dispensing with the cross-examination of the Defendant, in the facts and circumstances of the present case, was or was not a legally correct order. While considering this aspect of the case, the provisions, contained in Order III, Rules, 1, 2 and 4, are of great relevance and are, therefore, reproduced below: Order III Recognized Agents and Pleaders 1. Appearances, etc., may be in person, by recognized agent or by pleader. -- Any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf: Provide that any such appearance shall, if the court so directs, be made by the party in person. 2. Recognized agents. 2. Recognized agents. - The recognized agent of parties by whom such appearances, applications and acts may be made or done are - (a) persons holding powers-of-attorney, authorizing them to make and do such appearances, applications and acts on behalf of such parties; 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 recognized agent or by some other person duly authorized 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 singed 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 client. 16. While considering the provisions, embodied in Rules 1, 2 and 4 of Order III, it may be noted that in a civil suit, it is not necessary for a party to remain present, in person, on every date of hearing unless there is a specific order passed, in this regard, by the court in terms of the provisions of Order V, Rule 3 or Order DC, Rule 12. It is for this reason, therefore, that Order III Rule 1 provides that appearance, on behalf of the parties, may be made by recognized agents. A party or his recognized agent may also appoint a pleader and every such appointment shall be filed in the court. Once duly appointed, the engagement of the pleader subsists until engagement is determined with the leave of the court. It logically follows that withdrawal of engagement cannot be an arbitrary act and the permission of the court is necessary to terminate engagement of a counsel. 17. Once duly appointed, the engagement of the pleader subsists until engagement is determined with the leave of the court. It logically follows that withdrawal of engagement cannot be an arbitrary act and the permission of the court is necessary to terminate engagement of a counsel. 17. It is also worth noticing that the appointment of a pleader, filed in the court, shall be deemed to have remained in force until determined 'with the leave of the court' by (i) a writing, signed by the client or the pleader, as the case may be, and filed in the court, or (ii) until the client or the pleader dies, or (iii) until all proceedings, in the suit, have ended so far as regards the client. This clearly shows that until the client or the pleader dies or until all proceedings, in the suit, end as far as the client is concerned or until the leave of the court is obtained determining the relationship of pleader and client, the appointment, once made and filed in a suit, shall continue to remain in force. 18. In the present case too, when no leave had been granted by the learned trial court, mere filing of the petition by the Plaintiffs pleader intimating the court that the Plaintiffs had taken away all the papers or documents from their counsel had not determined the relationship of client and pleader, which had existed between the Plaintiffs pleader and the Plaintiffs. For all intents and purposes, therefore, the pleader, who had filed the said petition, continued, in law, to remain the pleader of the Plaintiffs. 19. To put it a little differently, in the fact situation of the present case, it is clear that the learned trial court had not passed any order, on 29.1.2010, allowing the Plaintiffs counsel to withdraw from the counterclaim. In such a situation, the Plaintiffs' counsel cannot be held to have ceased to be the Plaintiffs' counsel. 20. 19. To put it a little differently, in the fact situation of the present case, it is clear that the learned trial court had not passed any order, on 29.1.2010, allowing the Plaintiffs counsel to withdraw from the counterclaim. In such a situation, the Plaintiffs' counsel cannot be held to have ceased to be the Plaintiffs' counsel. 20. On the date fixed for cross-examination of a witness, if the pleader seeks withdrawal of his engagement and the court grants leave for such withdrawal, the pleader cannot be said to be representing the party on that day and, in the absence of any order, directing the party to remain present on all dates of hearing, the net effect would be that the party, whose pleader has been allowed to withdraw, is neither present in person nor can he be taken to have been represented by his counsel. In such a situation, the order passed, on 29.1.2010, dispensing with the cross-examination of the Defendants by treating the Plaintiffs counsel as having stood disengaged from the case and his appointment as a pleader having ceased to exist, is legally untenable in law. 21. In fact, the order, dated 29.1.2010, aforementioned reflects that the learned trial court had assumed as if the Plaintiffs had the knowledge of their pleader withdrawing from the suit. If such assumption of fact is not based on any material, it is obviously prejudicial to the party concerned. There is absolutely no material on record indicating that the Plaintiffs had the knowledge that their pleader had withdrawn from the suit. This apart, and as already indicated above, no leave, having been granted by the learned trial court determining the appointment of the Plaintiffs pleader, the Plaintiffs pleader continued to remain the pleader of the Plaintiffs. In such circumstances, no order, dispensing with the cross-examination of the Defendant, could have been made inasmuch as the court could not have treated the Plaintiffs being present in the counter-claim through their lawyer. 22. On the next date, i.e., 20.3.2010, the court assumed that despite having sufficient knowledge of the withdrawal of their counsel, the party had absented and, hence, the cross-examination of the witnesses of the Defendants too was dispensed with. 23. 22. On the next date, i.e., 20.3.2010, the court assumed that despite having sufficient knowledge of the withdrawal of their counsel, the party had absented and, hence, the cross-examination of the witnesses of the Defendants too was dispensed with. 23. In the backdrop of the above facts of the present case, what is, now, of utmost importance is to note is that the order, passed, on 29.1.2010, dispensing with the cross-examination of the Defendant and fixing the case for cross-examination of the Defendant's witnesses on 20.3.2010 was, ex facie, illegal, because the Plaintiff cannot be said to have been represented in the counter-claim, on 29.1.2010, when the Plaintiffs' counsel made the application informing the court that he had withdrawn from the suit as the Plaintiffs counsel. Adjourning the case, in the context of the facts indicated above, would mean that the court had assumed as a fact that the party had knowledge of such withdrawal; whereas it is not in dispute that no notice was issued to the Plaintiffs either by the court or the lawyer regarding withdrawal of engagement. 24. Pausing here, for a moment, "let me come to Order XVII, Rule 1, which allows a court to adjourn hearing of suits for reasons to be recorded, in writing, if sufficient cause is shown by the party, who seeks adjournment. Order XVII, Rule 1, Code of Civil Procedure provides that on sufficient cause being shown, the hearing of the case may be adjourned. But if there be a situation, where neither sufficient cause is shown nor the pleader cross-examines the witness present, the case will fall under Order 17, Rule 2(e), Code of Civil Procedure, which provides as follows: 2(e) where a witness is present in court but a party or his pleader is not present or the party or his pleader, though present in court, is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid. 25. 25. From a bare reading of what Order XVII, Rule 2(e) embodies, it becomes clear that the jurisdiction to dispense with the cross-examination of a party or a witness arises only when the party and/or this pleader, as the case may be, is absent, or when present, the party or the pleader or the both, as the case may be, are reluctant to cross-examine the adversary's witness without there being sufficient cause for adjournment of the hearing. Only when a party or his pleader is absent or even when the person present is reluctant to cross-examine the adversary's witnesses can a cross-examination of such a witness be dispensed with. That is to say, it is only when the reluctance, on the part of a party or his pleader, is willful that the court has the power to dispense with the cross-examination of the witness of the adversary. 26. Coupled with the above, once it is held by the court that absence is willful, it can take recourse to one of the modes prescribed under Order XVII, Rule 3 Code of Civil Procedure, which reads as under: Order XVII 3. Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the court may, notwithstanding such default, - (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, proceed under Rule 2. 27. In the circumstances covered by Clause (a), the parties must be present in the court. The withdrawal of engagement would not mean presence of party, because the presence would mean presence for the doing of the act necessary for the progress of the suit. If the presence is only for the purpose of withdrawal of engagement, such a presence would not mean presence for the doing of any act. Thus, on the adjourned date of hearing, when a lawyer withdraws his engagement, the situation would fall under Clause (b), that is, the party is absent. If the presence is only for the purpose of withdrawal of engagement, such a presence would not mean presence for the doing of any act. Thus, on the adjourned date of hearing, when a lawyer withdraws his engagement, the situation would fall under Clause (b), that is, the party is absent. When the party is treated as absent, the course open to the court is to proceed under Rule (2) of Order XVII, which reads: Order XVII Adjournments 2. Procedure if parties fail to appear on day fixed. -- Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IX or make such other order as it thinks fit. 28. It will be seen from the provisions of Order XVII, Rule 2 that it is not necessary that for every absence. Court will proceed in terms of Order IX, Rule 6 or Rule 8, as the case may be, for, the court in such a situation, has the power to make other orders as it thinks fit. This flexibility, in Rule 2, has been conceived of to meet exigencies, where the making of ex-party order or dismissal of the suit is not warranted in the interest of fair trial. When the party does not have knowledge of the withdrawal of his lawyer, his absence on the date of hearing cannot be termed as 'willful'. 29. If the scheme of order XVII (as regards adjournment of hearing of suits, which would include counter-claims), is analyzed in the light of the provisions of Order III, what would, in substance, emerge is: under Order III, Sub-rule (1) of Rule 4, 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 and every such appointment shall, in the light of Sub-rule (2) of Rule 4 of Order III, be filed in the 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 tiled in the court. In short, thus, until the court grants leave, when.- the appointment of a pleader is filed, the pleader cannot be treated to have disengaged himself nor can he be treated to have withdrawn from the suit until the time the client or the pleader dies or until all proceedings in the suit end so far as the client is concerned. 30. Under Order XVII, Rule 1, the court may, if sufficient cause is shown, at any stage of a suit, grant time to the parties or to any of them, and may, from time-to-time, adjourn the hearing of the suit for reasons to be recorded, in writing. However, where a witness is present, but a party or his pleader is not present or the party or his pleader, though present in the court, is not ready to examine or cross-examine the witness, the court may, if it thinks fit, record, under proviso (e) to Sub-rule (2) of Rule 1 of Order XVII, the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid. 31. Where, on any day to which hearing of a suit is adjourned, the party or any of them is absent, the court may, in the light of the provisions of Order XVII, Rule 3, proceed in terms of Rule 2 of Order XVII, which empowers the court to proceed to dispose of the suit in one of the modes indicated in that behalf by Order IX or make such other order as it thinks fit. In short. Order XVII, Rule 3 allows the court to proceed in terms of order EX if on adjourned day of hearing of the suit, a party is absent. One of such modes, in the light of Order IX, Rule 6, can be a direction that the suit shall proceed ex parte. Notwithstanding the fact that the court may, in such circumstances, direct that the suit would proceed ex parte, the court, instead of directing that the suit shall proceed ex parte, pass any such other order as the court thinks fit. 32. Notwithstanding the fact that the court may, in such circumstances, direct that the suit would proceed ex parte, the court, instead of directing that the suit shall proceed ex parte, pass any such other order as the court thinks fit. 32. In the case at hand, if the facts of the case are clearly borne in mind, what transpires is that as far as the order, dated 29.1.2010, is concerned, the same was made on the ground that the party, (i.e., the Plaintiffs and their counsel) were absent. This was an order, which was made under Order XVII, Rule 2. In order to set aside an order, which is passed under Order IX, a petition can be made under Order IX, Rule 7, which provides: Order IX 7. Procedure where Defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance. - Where the court has adjourned the hearing of the suit ex parte, and the Defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. 33. In the case at hand, the learned trial court, as already indicated above, did not make any specific order granting leave to the Plaintiffs' counsel to withdraw from the counter-claim, but it dispensed with the cross-examination of the Defendant. In the light of the provisions of Order III, Rule 4 read with Order XVII, Rule 2(e), the leave, as required, having not been granted to the Plaintiffs' pleader by the learned trial court, the learned trial court ought not to have treated the Plaintiffs' counsel to have withdrawn from the suit. In such circumstances, a notice ought to have been given to the Plaintiffs, on the petition filed by their counsel, informing the Plaintiffs that according to the Plaintiffs' counsel, the Plaintiffs had taken away the papers/documents of the case and their counsel had, therefore, withdrawn from the suit. Without serving notice on the Plaintiffs in this regard, the court ought not to have treated absence of the counsel of the Plaintiffs as the absence of the Plaintiffs. This was an error, which was apparent on the face of the record and such an error was, undoubtedly, reviewable under Order XLVII. 34. Without serving notice on the Plaintiffs in this regard, the court ought not to have treated absence of the counsel of the Plaintiffs as the absence of the Plaintiffs. This was an error, which was apparent on the face of the record and such an error was, undoubtedly, reviewable under Order XLVII. 34. Similarly, as far as the order, dated 20.3.2010, is concerned, the same was palpably passed dispensing with the cross-examination of the Defendant's witness and fixing the counter-claim for arguments on assumption that the Plaintiffs were absent. It appears to have escaped the attention of the learned court below, as indicated hereinbefore, that when no notice had been served on the Plaintiffs on the petition filed by their counsel and when no order had been specifically made directing presence of the party, in person, in the counter-claim, no order, adverse to the interest of the Plaintiffs, could have been passed on 20.3.2010, when the Plaintiffs were absent. Here, again, and as before, the learned trial court committed the error of dispensing with the cross-examination of the Defendant's witness and fixing the counter-claim for arguments, without serving any notice on the Plaintiffs informing them that their counsel had filed a petition withdrawing from the suit, as indicated hereinbefore, particular (sic) the learned court below had not passed any order allowing leave to the Plaintiffs counsel to withdraw from the counter-claim. The latter order, dated 20.3.2010, was also, thus, reviewable under Order XLVII, the same being an order, which was apparently incorrect in law. 35. What crystallizes from the above discussion is that both the orders, i.e., the orders, dated 29.1.2010 and 20.3.2010, were passed which were incorrect and contrary to law, the incorrectness and illegality being apparent on the face of the record. When the petitions filed by the Plaintiffs, on 11.6.2010, was for reconsideration of the said two orders, dated 29.1.2010 and 20.3.2010, and there being specific provisions made in the form of Order XLVII, Rule 1 for review of such orders, the learned trial court was correct in concluding that the petition, made in the present case, by the Plaintiffs, on 11.6.2010, was basically a petition under order XLVII and not a petition under Section 151 of the Code of Civil Procedure. 36. 36. What is now pertinent to note is that when the learned trial court had taken the view, and rightly so, that the petition, in question, was a petition for review under Order XLVII, it ought to have drawn the attention of the Plaintiffs counsel to what it had concluded, namely, that the petition, in question, was a petition for review under Order XLVII and not a petition entertain able in exercise of the inherent powers of the court under Section 151 so that the Plaintiffs' counsel could make a petition seeking condonation of delay in terms of Section 5 of the Limitation Act, 1963, if he deemed fit. However, the learned court below rejected the petition without giving any opportunity to the Plaintiffs to make any application or petition seeking condonation of delay. No doubt, it is true that it is no part of the duty of the court to educate a counsel. Nevertheless, for the incompetence of a counsel or for the error committed by a counsel or for lack of knowledge of a counsel, his client cannot be made to suffer. 37. In the case at hand, therefore, the learned court below ought to have passed an order holding that the petition, made under Section 151, was, in effect and in law, a petition under Order XLVIIand since the said petition had been filed beyond the period of 30 days from the date of making of the orders, the same could not be considered and allowed in the absence of any cause being shown as to why the said petition had not been filed within prescribed period of limitation of 30 days. This apart, there is, strictly speaking, no provision made in Section 5 or anywhere else, in the Limitation Act, 1963, requiring making of a petition for extension of time in terms of Section 5 of the Limitation Act. Though, ideally, a person should make an application under Section 5 of the Limitation Act, if extension of time for preferring an application or an appeal is required. In the absence of any such written application, the court is not powerless to extend the period of limitation by taking recourse to Section 5 provided that the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period, as the case may be. 38. In the absence of any such written application, the court is not powerless to extend the period of limitation by taking recourse to Section 5 provided that the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period, as the case may be. 38. In a case of present nature, therefore, when the materials on record are available to conclude that there was sufficient cause for a party's absence on a date, when a suit was fixed for hearing, there was no impediment, in law, in allowing extension of time and in condoning the delay. A reference, in this regard, may be made to the case of Bhagmal and Ors. v. Kunwar Lal and Ors. 2010 (7) SCALE 490, wherein the Apex Court has clearly indicated that the procedure is after all handmaid of justice and when an application made under Order IX, Rule 13shows the reasons for absence on the previous date and also explains the delay in filing the application, the causes, so shown, for the absence on the date, when the suit came up for hearing and also for the delay in filing the application under Order IX, Rule 13, can be taken into account for the purpose of condoning the delay provided that the cause, for absence, is found to be a 'sufficient cause' within the meaning of Section 5 of the Limitation Act. Furthermore, and as already indicated above, a client cannot be made to suffer for the error committed by his counsel. If sufficient cause is shown, while making an application for review, for not being able to make the application for review earlier, such a cause is sufficient for the purpose of Section 5 of the Limitation Act, too. 39. What crystallises from the above discussion is that in the case at hand both the orders, i.e., the orders dated 29.1.2010 and 20.3.2010 were orders which were erroneous and the errors were apparent on the face of the record. Such orders were reviewable. This apart, the petition seeking review filed by the Plaintiffs in the present case also discloses the reasons as to why they had not applied for review in the past. Such orders were reviewable. This apart, the petition seeking review filed by the Plaintiffs in the present case also discloses the reasons as to why they had not applied for review in the past. The reason being that the pleader had withdrawn from the suit without the knowledge of the Plaintiffs and that the papers/documents relating to the suit, had also not been made available to them by their pleader, with the result that no other lawyer was willing to be engaged and appear in the counter-claim on behalf of the Plaintiffs and that the Plaintiffs had to obtain copies from the court and thereafter only, they could engage a counsel who had applied for review. In such circumstances, the reasons assigned by the Plaintiffs, being, in the face of the materials on record, generally ought to have been treated as sufficient cause by the learned court below for the purpose of condoning the delay in filing the review petition and the review petition ought to have been allowed. By the impugned order dated 10.8.2010, as the review petition has been rejected, the impugned order is, in the backdrop of the materials on record and the position of law relevant thereto, cannot be sustainable in law. 40. Because of what has-been discussed and pointed out above, this revision petition is allowed. The impugned order, dated 10.8.2010, as well as the orders, dated 29.1.2010 and 20.3.2010, are hereby set aside and the counter-claim is directed to be taken up for further necessary order by the learned trial court. 41. In order to avoid delay in the disposal of the counter-claim, the parties to the counter-claim are hereby directed to appear in the counterclaim on 10.11.2010. 42. Send down a copy of this order to the learned court below.