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2013 DIGILAW 1433 (MP)

Rajkumar Verma v. Maya Devi

2013-11-20

ANIL SHARMA

body2013
JUDGMENT : Anil Sharma, J. 1. This appeal has been filed under Order 43 Rule 1(d) of the Civil Procedure Code against the order passed by the Fourth Additional District Judge, Rewa (MP) in Misc. Case No. 15/07, on 11.7.2011, whereby application filed under Order 9 Rule 13 CPC on behalf of the appellant has been dismissed. Learned counsel for the appellant has submitted that the learned lower court is not justified in rejecting the application on the ground of negligence on the part of the appellant. 2. On perusal of the impugned order it is clear that the learned Tribunal in claim case No. 96/2000 has preceded ex-parte against the non-applicant No. 1 at the stage of evidence when the appellant failed to appear and produce witnesses on 19.9.2000 and when his counsel pleaded no instructions on 14.10.2000. 3. Learned trial court has considered interaction between the appellant and his counsel with regard to claim case during pendency of the claim case and reached to the conclusion that the appellant was negligent in conducting his case. 4. Learned counsel for the appellant has cited a judgment of Hon'ble Apex court passed in the matter of Tahil Ram Issardas Sadarangani and others vs. Ramchand Issardas Sadarangani and another, reported in AIR 1993 SC 1182 , in which it has been held that the dismissal of the petition on withdrawal of "power" by advocate in the absence of client is not proper. The litigant should not suffer due to faults of his counsel; the Hon'ble Apex court has set-aside the order of dismissal in default. 5. Learned counsel for the appellant has also cited a judgment of Hon'ble Apex court passed in the matter of Malkiat Singh and another vs. Joginder Singh and others, reported in AIR 1998 SC 258 in which it has been held that where defendants engaging counsel to defend suit filed against them, the suit proceeded ex-parte and ex-parte decree passed on counsel reporting no instructions, neither counsel reporting this fact to defendants nor Court issued notice to them, the defendants getting knowledge of ex-parte decree only when they approached the counsel, application to set aside decree filed by defendants within 4 days of knowledge, defendants cannot be said to be careless/negligent. Ex-parte decree is liable to be set-aside. 6. Ex-parte decree is liable to be set-aside. 6. Learned counsel for the appellant has also cited a judgment of Hon'ble Apex court passed in the matter of N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222 , in which the Hon'ble Apex Court has condoned the delay of 883 days in filing the application for setting aside ex-parte decree considering the fact that the delay was caused due to the delay of advocate to inform appellant as well as his failure to take action. However, it is also held that the court should compensate opposite party in such cases. The application was allowed by imposing cost of Rs. 10,000/- to be paid to the respondent. 7. Learned counsel for the appellant has also cited another judgment on these points also. 8. Learned counsel for the respondent on the other hand has submitted that the appellant was aware of the ex-parte award passed against him and has also cited judgment of Tahil Ram Issardas Sadarangani (supra) which is also cited by the counsel for the appellant. 9. In the present case, the learned lower court has proceeded ex-parte against the appellant after his counsel pleaded no instructions. Therefore, looking to the judgment of Hon'ble Apex court passed in the matter of Tahil Ram Issardas Sadarangani (supra) on legal principles, the appellant should not suffer due to negligence of his counsel and the learned lower court is not justified in rejecting the application by following the judgment of this Court passed in the matter of Om Prakash vs. Bal Hussain and other, ILR 198 MP 880 overlooking the judgment of Hon'ble Apex Court. Therefore, the impugned order is not sustainable. Resultantly, the appeal is allowed and setting aside the impugned order, application filed under Order 9 Rule 13 CPC by the appellant before the lower court is allowed and the claim case No. 96/2000 pending before the learned 4th Additional Claims Tribunal, Rewa is restored to its original number on payment of cost of Rs. 5000/- to the claimant with direction to the Tribunal that if the Insurance company is found liable to pay compensation, interest on the award amount from the date of passing of the award i.e. 19.2.2001 in claim case No. 96/2000, shall be payable by the appellant/owner till the date of passing of fresh award. No order as to costs. Appeal allowed.