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2019 DIGILAW 1262 (ALL)

Raj Kumari v. District Judge Hamirpur

2019-05-09

AJAY BHANOT

body2019
JUDGMENT : Ajay Bhanot, J. 1. The petition under Article 227 is directed against the order dated 12.12.2017 passed by the learned Civil Judge (Senior Division), Hamirpur in Misc. Case No.86/74 of 2009 (Smt.Kishori Devi Vs. Smt. Rajkumari) and the order dated 08.03.2019 passed by the learned District Judge, Hamirpur in Civil Revision No.03 of 2018 (Smt. Rajkumari and another Vs.Smt. Kishori Devi). 2. The application filed by the respondent No.3 under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte judgement and decree entered by the learned trial court and the application for condonation of delay in aid thereof were allowed by the learned trial court by order dated 12.12.2017. The learned revisional court affirmed the order of the learned trial court in its order bearing date 08.03.2019. 3. Sri B. Malik, learned counsel assisted by Sri Amit Malik, learned counsel for the petitioners states that the cause shown by the respondent No.3 to set aside the judgement and decree of the trial court was not sufficient. The courts erred in law by allowing the application. The impugned orders are unsustainable in law. He relies on the judgement of the Hon'ble Gauhati High Court in the case of Smt. Rupa Gogoi and others Vs. Md. Abdul Aziz, reported at AIR 2019 Gauhati 21. 4. Sri Punit Kumar Gupta, learned counsel for the respondent No.3 supported the orders assailed in the instant writ petition. He contended that the learned courts found that the respondent No.3 was absent in the suit proceedings for valid reasons. There is no infirmity in the findings of fact returned in the orders impugned. Learned counsel for the respondent No.3 also submits that this Court cannot re-appraise the evidence while exercising powers under Article 227 of the Constitution of India. Learned counsel for the respondent No.3 relies on the judgements of the Hon'ble Supreme Court in the cases of The Secretary, Department of Horticulture, Chandigarh and Ors. Vs. Raghu Raj, reported at AIR 2009 SC 514 , Rafiq and others Vs. Munshilal and others, reported at AIR 1981 SC 1400 and the judgement of this court in the case of Om Prakash Vs. IIIrd Additional District Judge, Rampur, reported at 2011 (1) AWC 42. 5. Heard learned counsel for the parties. 6. Vs. Raghu Raj, reported at AIR 2009 SC 514 , Rafiq and others Vs. Munshilal and others, reported at AIR 1981 SC 1400 and the judgement of this court in the case of Om Prakash Vs. IIIrd Additional District Judge, Rampur, reported at 2011 (1) AWC 42. 5. Heard learned counsel for the parties. 6. A suit instituted by the petitioners was registered as Suit No.193 of 2007 (Smt. Raj Kumari and another vs. Smt. Kishori Devi) before the learned Civil Judge (Senior Division), Hamirpur. The judgement and decree was entered by the learned trial court in the said suit on 25.10.2008. The judgement and decree were ex parte to the respondent No.3. 7. Being aggrieved, the respondent No.3 instituted an application under Order 9, Rule 13 of the Code of Civil Procedure for recall of the judgement and decree dated 25.10.2008 rendered by the trial court. The said application was accompanied by an application for condonation of delay filed under Section 5 of the Indian Limitation Act. The said applications were filed by the respondent No.3 on 09.09.2009. 8. The cause shown for the delay in the application under Section 5 of the Limitation Act in aid of the application under Order 9, Rule 13 of the Code of Civil Procedure was found to be good by both the learned trial court as well as learned revisional court. The delay condonation application was allowed by the courts. The learned revisional court in its order dated 08.03.2019 found substance in the assertions of the respondent No.3 in her application under Order 9, Rule 13 of the Code of Civil Procedure. The learned revisional court found that the absence of respondent No.3 in her suit proceedings and failure to contest the same was on account of negligence of her counsel. The counsel had neglected to alert the respondent no.3 of the true state of facts and the status of the proceedings before the learned trial court. Lack of knowledge of correct facts and status of proceedings before the trial court caused her absence in the suit proceedings and prevented her from contesting the claim in the suit. 9. Further, the courts of the first and second instance have spoken in one voice and found that sufficient cause prevented the respondent No.3 from appearing in the suit proceedings and contesting the same on merits. 9. Further, the courts of the first and second instance have spoken in one voice and found that sufficient cause prevented the respondent No.3 from appearing in the suit proceedings and contesting the same on merits. In the wake of such findings the application under Order 9, Rule 13 of the Code of Civil Procedure was also allowed. The reasonings of the learned trial court and the learned revisional court are consistent and the findings of the courts are concurrent. 10. Learned counsel for the respondent No.3 also called attention to clear averments in the application under Order 9, Rule 13 of the Code of Civil Procedure wherein the service of the notices were denied with particulars and endorsements on the service reports were discredited with specific pleadings of fraud and misrepresentation. 11. I find the reasonings and consideration on the foot of which findings were returned by the learned trial court as well as learned revisional court are beyond reproach. The findings of facts returned by both the courts cannot be faulted and are not liable to be interfered with. 12. The courts have always eschewed a hyper technical or pedantic approach in such matters. It would be apposite to reinforce the narrative at this stage with good authority. There are cases in point. 13. In the case of Rafiq and others Vs. Munshilal and others, reported at AIR 1981 SC 1400 , the Hon'ble Supreme Court was seized with a matter where negligence on part of a counsel had caused adverse consequences to the litigant. The Hon'ble Supreme Court in Rafiq (supra) narrated the reality of the relationship between a counsel and a client in our country and also considered the consequence of default of a counsel on the fate of the litigant. Drawing on experience and authority, the Hon'ble Supreme Court held as follows: "3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law." 14. Similarly, in the case of The Secretary, Department of Horticulture, Chandigarh and Ors. Vs. Raghu Raj, reported at AIR 2009 SC 514 , the Hon'ble Supreme Court considered the responsibility of a counsel and consequences of non-appearance of a counsel or any default on part of a counsel on a litigant. Such default of counsel cannot visit the party with any penal consequences. The position of law was stated by the Hon'ble the Supreme Court Secretary, Department of Horticulture, Chandigarh (supra) as under: "27. Now, it cannot be gainsaid that an advocate has no right to remain absent from the Court when the case of his client comes up for hearing. He is duty bound to attend the case in Court or to make an alternative arrangement. Non-appearance in Court without `sufficient cause' cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the Court and can never be countenanced. 28. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate. " 15. This Court in the case of Om Prakash Vs. IIIrd Additional District Judge, Rampur, reported at 2011 (1) AWC 42 sets its face against a hyper technical view in regard to condonation of delay and mistake on part of a counsel. This Court in Om Prakash (supra) declined to foist any adverse consequences on a litigant on account of mistake on part of his counsel by holding thus: "11. It is no doubt true that the defendant did not file his written statement despite repeated opportunities, such conduct of a party to the litigation cannot be approved of. This Court in Om Prakash (supra) declined to foist any adverse consequences on a litigant on account of mistake on part of his counsel by holding thus: "11. It is no doubt true that the defendant did not file his written statement despite repeated opportunities, such conduct of a party to the litigation cannot be approved of. But at the same time in the facts of the case the Court finds that there had been an error on the part of the counsel in recording the next date fixed in the matter. In support of such plea not only the counsel filed his personal affidavit, the case diary of the counsel was also produced. The courts below have adopted an hyper technical attitude in the facts of the case by not accepting the mistake committed on the part of the advocate." 16. The judgement of the learned trial court as well as learned revisional court is in accord with the law laid down by the Hon'ble Supreme Court and this Court as stated in the preceding paragraphs. Clearly a litigant cannot be penalized for any default or mistake on part of the counsel. The Courts have protected litigants from adverse consequences accruing from a default or mistake of their counsels. 17. Before parting, it would be apposite to consider the judgement of the Hon'ble Gauhati High Court in the case of Smt. Rupa Gogoi and others Vs. Md. Abdul Aziz reported at 2019 AIR Gauhati 21 relied upon by the petitioners. In the case of Smt. Rupa Gogoi (supra) held thus: “15. Therefore, in the considered opinion of this Court, on the basis of materials on record, the issue which arises for determination in this case is answered by holding that under the facts of this case, the bald insinuations made by the appellants and their predecessor-in-interest against the previous advocate does not constitute a good ground to vacate the ex parte decree." 18. The judgement is of no assistance to the cause of the petitioners. The judgement is clearly distinguishable on facts. Moreover, the judgements rendered by the Hon'ble Surpeme Court in the case of The Secretary, Department of Horticulture, Chandigarh (supra) and in the case of Rafiq (supra) were not brought to the notice of the Hon'ble Gauhati High Court in the case of Smt. Rupa Gogoi (supra). The judgement is clearly distinguishable on facts. Moreover, the judgements rendered by the Hon'ble Surpeme Court in the case of The Secretary, Department of Horticulture, Chandigarh (supra) and in the case of Rafiq (supra) were not brought to the notice of the Hon'ble Gauhati High Court in the case of Smt. Rupa Gogoi (supra). The judgement rendered by the Gauhati High Court without consideration of the law laid down by the Hon'ble Supreme Court in point does not have persuasive value in the instant case. 19. The findings as stated earlier are impeccable and the law is settled. The fate of the petitioners cannot be different. Moreover, there are constraints of jurisdiction imposed on this court in exercise of its power under Article 227 of the Constitution of India. This Court is not a court of appeal nor can it exercise the powers of an appellate court by reappreciating the evidence. There has been full procedural propriety and complete application of mind by the courts of the first and second instance. 20. In the light of the preceding discussion, the application under Article 227 is misconceived and lacks merit. 21. At this stage, a joint prayer was made by the learned counsel for both the parties that both the parties will join the suit proceedings and will cooperate with the learned trial court for deciding the suit expeditiously. Ordinarily, this Court does not pass any directions when the petition is being dismissed. However, considering the facts of this case and the joint prayer made by counsels for both parties, this Court deems it appropriate to direct the learned trial court to proceed expeditiously in the matter and decide the suit proceedings, preferably, within a period of six months from the date of receipt of a certified copy of this order. The parties undertake not to seek any adjournment in the matter. 22. It is open to the parties to make all submissions on merits or file any applications for any relief as may be advisable in law before the learned trial court. 23. The petition is dismissed with the above observations.