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2017 DIGILAW 394 (MP)

Balvir Singh v. Anil Kumar Jain

2017-03-22

VIVEK AGARWAL

body2017
ORDER 1. This civil revision has been filed by the petitioner, who was defendant before the trial Court, being aggrieved by the order dated 29.9.2014 passed by the Court of Fourth Additional District Judge, Gwalior in Miscellaneous Civil Appeal No.1/2013, whereby the appeal filed by the petitioner under Order 43 rule 1 read with section 151 of the Code of Civil Procedure has been dismissed and the order of the trial Court dated 21.2.2013 passed by the Court of Fourth Civil Judge Class-I, Gwalior in Miscellaneous Civil Suit No.2/2012 rejecting the application of the petitioner under Order 9 rule 13, CPC, has been affirmed. 2. It is the petitioner's contention that the landlord plaintiff had filed a suit for eviction and recovery of rent against the petitioner in the trial Court. Petitioner had engaged a counsel namely Shri Surendra Kumar Saxena before the trial Court in the civil suit which was instituted in the year 2008. In the original civil suit, written statement was filed and thereafter his counsel Shri Surendra Kumar Saxena had informed him that he is not required to appear before the Court regularly and as and when he will be required he will be called. 3. It is petitioner's further contention that the petitioner is a truck driver and is often required to stay out of Gwalior in connection with his occupation, therefore, on 14.2.2012 after returning from his work, the petitioner's neighbourers had informed him that certain persons from the Court had come to take possession of the accommodation in question and then the petitioner had contacted his counsel who had shown his ignorance about progress of the case and therefore he contacted another counsel Shri Santosh Sharma on 15.2.2012 through whom he had come to know that ex parte proceedings were drawn against the petitioner on 6.3.2010 in the original suit and thereafter on 30.3.2010 ex parte judgment and decree has been passed by the trial Court. It is the petitioner's contention that since the counsel had informed him that he is not required to appear before the Court and therefore he was waiting for intimation from his counsel and when it was not received till 14.2.2012 and he was informed by his neighbourers about the Court's judgment and decree, he had approached the Court. 4. It is the petitioner's contention that since the counsel had informed him that he is not required to appear before the Court and therefore he was waiting for intimation from his counsel and when it was not received till 14.2.2012 and he was informed by his neighbourers about the Court's judgment and decree, he had approached the Court. 4. Learned trial Court has dismissed the application under Order 9 rule 13, CPC on the ground that the petitioner has not given any justification to explain the delay and has not filed any affidavit from his counsel as to why he had not appeared or informed the petitioner about the proceedings. In any case, it is the responsibility of the party, which engages a counsel, to contact him and find out about progress of his case. Therefore, the trial Court dismissed the application, against which M.A. was filed that too has been dismissed on the ground that since the petitioner had not contacted his counsel till 14.2.2012, after he being proceeded ex parte in March 2010, itself demonstrates that the petitioner was never serious in contesting the case and had failed to discharge the burden that he was in touch with his counsel and his counsel had neither informed him about the date nor had taken sufficient pains to participate in the proceedings. Thus, the first appellate Court has held that the delay is not sufficiently explained and has refused to condone the delay. 5. Arguments heard and record perused. In the opinion of this Court, it is apparent that the suit was filed in the year 2008. Petitioner had admittedly filed his written statement. It is admitted position that the petitioner had not contacted his counsel for long. Petitioner has not given any date on which his counsel had asked him not to appear and he was furnished information as to the presence of the petitioner being not required. No reason has been assigned for non-appearance of his counsel on the date on which ex parte proceedings were drawn, i.e., 6.3.2010. Further, the petitioner has failed to explain that why he was not taking information about the case from his counsel and could not explain the delay of more than two years in not approaching the Court after passing of the judgment and decree. He has also not explained any reason for absence of his counsel on 6.3.2010. 6. Further, the petitioner has failed to explain that why he was not taking information about the case from his counsel and could not explain the delay of more than two years in not approaching the Court after passing of the judgment and decree. He has also not explained any reason for absence of his counsel on 6.3.2010. 6. In view of the aforesaid, it is apparent that the petitioner was never serious about his own case and merely engaging a counsel is not sufficient to impute deficiency on the part of the counsel to gain sympathy from the Court for seeking setting aside of an ex parte judgment and decree. In fact, upon showing sufficient cause for non-appearance, the delay can be condoned and ex parte proceedings be set aside. But in the present case, the petitioner has failed to show any sufficient cause for his non-appearance inasmuch as he has failed to explain as to why he had not contacted his counsel for over a period of two years after filing of the written statement and what steps he had taken to remain in touch with the counsel to take information about progress of the case. In absence of any such material being there on record, it cannot be said that the impugned orders suffer from any infirmity or arbitrariness. In fact, the petitioner cannot seek setting aside ex parte proceedings without assigning sufficient and good cause for non-appearance. In the present case, the petitioner has not been able to explain any reason as to why he was not in touch with his counsel for a long duration of over two years. 7. In view of the aforesaid, this petition deserves to be dismissed inasmuch as this Court is of the opinion that there is no infirmity in the order passed by the learned appellate Court in dismissing misc. civil appeal against the order of rejecting the application of the petitioner under Order 9 rule 13, CPC. Thus, this civil revision fails and is hereby dismissed. Parties to bear their own costs.