Bhagwant Singh vs Sukhjit Kaur and Another

M.L. Singhal, J.—This is civil revision against the order dated 22.7.1999 passed by Civil Judge (Sr. Division), Jalandhar whereby he accepted application filed under Order 9 Rule i 3 of the CPC for setting aside the ex parte decree dated 28.7.1997 granted in favour of Bhagwant Singh-plaintiff (petitioner-herein) and against Smt. Sukhjit Kaur and Rajeshinder Singh defendants (respondent-herein).

Bhagwant Singh filed suit for possession through specific performance against Sukhjit Kaur and her son Rajeshinder Singh. On 28.7.1997 that suit was decreed ex parte in favour of Bhagwant Singh and against Sukhjit Kaur and Rajeshinder Singh for 4.4.1997. suit was fixed for the cross-examination of Jagtar Singh PW and when Jagtar Singh did not come present, case was adjourned to 14.5.1997 for the cross-examination of Jagtar Singh PW subject to payment of Rs. 100/- as costs. It was to be last opportunity. On the adjourned date also i.e. 14.5.1997 Jagtar Singh did not come present, though the defendants along with their counsel were present. Case was adjourned to 21.7.1997 for the cross-examination of Jagtar Singh PW. On 21.7.1997 Sukhjit Kaur did not come present. Defendants were represented by Sh. Gulshan Arora. Advocate On 21.7.1997 he requested the Court about 11.00 AM that he would cross-examine the witness if he were present but he was informed that case was adjourned to 28.7.1997. On 28.7.1997. when Sh. Gulshan Arora. Advocate appeared for the cross-examination of Jagtar Singh at 12.30 P.M. he was informed that the defendants had been proceeded against ex parte on 21.7.1997 and ex parte judgment and decree had been passed on 28.7.1997.

Sh Gulshan Arora. Advocate moved application under Order 9 Rule 13 of the Code Civil Procedure for setting aside the ex parte judgment and decree dated 28.7.1997 passed in favour of Bhagwant Singh alleging therein that he had all along been appearing for the defendants and on 21.7.1997 also, he was present at about 11.00 AM for the cross-examination of Jagtar Singh PW when he was informed that case had been adjourned to 28.7.1997. On 28.7.1997 when he appeared at 12.30 PM he learnt that the defendants had been proceeded against ex parte on 21-7.1997 and ex parte judgment and decree passed on 28.7.1997. It was alleged that the absence of Smt. Sukhjit Kaur was not intentional as she was away to USA.

This application was resisted by Bhagwant Singh, plaintiff-decree holder saying that the same was barred by the limitation. Jagtar Singh PW was examined on 13.2.1997 and the case was adjourned on the request of Sukhjit Kaur''s counsel for the cross-examination of witness to 4.4.1997. On 4.4 1997, he was not cross-examined and the case was again adjourned to 14.5.1997. On 14.5.1997 also, counsel for Sukhjit Kaur did not cross-examine the witness and the case was adjourned to21.7.1997. Earlier, Sh.Gulshan Arora. Advocate used to appear on behalf of Sukhjit Kaur-defendant but on 15.5.1997, Sh. Gurdeep Singh Sachdeva, Advocate filed power of attorney on behalf of the defendant. Sh. Gulslian Arora was thus superseded oh 14.5.1997. Sh. Gurdeep Singh Sachdeva got the case adjourned to 21.7.1997 for the cross-examination of Jagtar SinghPW.On217.1997, when the case was called repeatedly, no body came present i.e. neither the defendants nor their counsel. Defendants were proceeded against ex parte and the case was adjourned to 28.7.1997. On 28.7.1997, suit was decreed ex parte. It was denied that Sh. Gulshan Arora, Advocate appeared in the case on 21.7.1.997 or that the case was adjourned to 28.7.1997 for evidence.

On the pleadings of the parties, following issues were framed by the Civil Judge (Sr. Division), Jalandhar:

Whether there are sufficient grounds for setting aside the ex parte decree dated28.7.1997? OPA

Whether the application is within time ? OPA

Whether the application has not been properly filed ? If so its effect ? OPR

Relief.

Civil Judge (Sr. Division), Jalandhar accepted the application and set aside the ex parte judgment and decreed dated 28.7.1997 passed in favour of Bhagwant Singh-plaintiff against Sukhjit Kaur and Rejeshinder Singh-defendants in view of his finding that Sukhjit Kaur was away to America in connection with her treatment and she was dissuaded from appearing in Court because of her being away to America and if for one reason or the other her counsel could not appear in the Court, she should not be denied the right of having her rights determined after contest. It was also found that Sh. Gulshan Arora. Advocate was competent to make application under order 9 Rule 13 of the CPC for setting aside ex parte decree, although Sh. Gurdeep Singh Sachdeva had been engaged by the defendants on 14.5.1997 yet after 14.5.1997 power of attorney given to Sh. Gulshan Arora, Advocate did not come to an end and it endured. It was found that the application had been filed by a properly authorised person. It was also felt that the application had been filed with time.

Aggrieved from this order dated 28.7.1997 passed by the Civil Judge (Sr. Division), Jalandhar. Bhagwant Singh-plaintiff has come up in revision to this Court.

I have heard the learned counsel for the petitioner and have gone through the record,

Learned counsel for the petitioner has submitted that Shri Gulshan Arora, Advocate has averred in application for setting aside the ex parte decree that on 21.7.1 997. he appeared before the Court at about 11.00 A.M. and he was ready to cross-examine Jagtar Singh if he were present hut he was informed that the case had been adjourned to 28.7.1997 by the Court. On 28.7.1997. when he appeared in the Court at about 12.30 PM for the cross-examination of Jagtar Singh PW, he was informed that the defendants had been proceeded against ex parte on 21.7.1997 and ex parte judgment and decree had been passed against the defendants on 28,7.1997. Learned counsel for the petitioner has submitted that the averments made by Shri Gulshan Arora, Advocate in this application are false inasmuch as they run counter to what was recorded by the Court is its zimini orders. As per the zimini orders recorded by the Court Sh. Gulshan Arora. Advocate did not appear for the defendants on 14.5.1997. On 14.5.1997. Shri Gurdeep Singh Sachdeva. Advocate filed power of attorney on behalf of the defendants and sought adjournment to cross-examine the witness. Case was adjourned to 21.7.1997. On 21.7.1997 case was called several times but none appeared on behalf of the defendant-Sukhjit Kaurand thus defendants were proceed against ex-pane on 21.7.1997 and the case was adjourned to 28.7.1997 for arguments and orders. On 28.7.1997. arguments were heard and the suit was decreed ex parte.

Learned counsel for the petitioner has submitted that story that on 21.7.1997. Sh. Gulshan Arora. Advocate appeared before the Court and the Court informed him that the case had been adjourned to 28.7.1997 for evidence is a concoction. Learned counsel for the petitioner has submitted that there was no occasion for Sh. Gulshan Arora. Advocate to have appeared before the Court on 21.7.1997 when he had been superseded on 14.5.1997 by Shri Gurdcep Singh Sachdeva. Advocate and on 21.7.1997. neither Shri Gurdcep Singh Sachdeva nor defendants themselves appeared. Learned counsel has submitted that Court should presume the zimini orders recorded by the Court as correct. Court should not attach any importance to what Shri Gulshan Arora. Advocate had stated.

In support of this submission, he has drawn my attention to State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, where it was held that the Judges'' record was conclusive. Neither lawyer nor litigant may claim to contradict it. except the Judge himself, but nowhere else. The court could not launch into inquiry as to what transpired in the High Court. The Court is bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. In cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so staled and no one can contradict such statements by affidavit or other evidence.

Be that as it may in this case, the most, that can be said to have emerged is that on 21.7.1997. neither defendants were present nor their counsel was present. Smt. Sukhjit Kaur was away to America in connection with her treatment and as such there could be no appearance by her. Defendants confided in the counsel. Counsel also did not appear. Should the absence of the counsel be allowed to visit the defendants with ex parte decree?

In my opinion the absence of the counsel should not visit the defendants with ex parte decree. It should be set aside. Defendants applied for setting aside the ex parte decree within four days when it was passed.

Learned counsel has submitted that when Shri Gurdcep Singh Sachdeva. Advocate had been engaged by the defendants on 14.5.1997. in supersession of Shri Gulshan Arora. Advocate. Shri Gulshan Arora. Advocate could not make application for setting aside the ex parte decree on 1.8.1997. Suffice it to say vakalatnama executed in favour of Shri Gulshan Arora, Advocate did not come to an end with the execution of vakalatnama in favour of Shri Gurdeep Singh Sachdeva, Advocate. Both could act and plead for the defendants. Shri Gulshan Arora could make application for setting aside the ex parte decree. Vakalatnama executed by the defendants in favour of Shri Gulshan Arora. Advocate shows that he had been given authority inter alia to present pleadings, appeal, cross-objections or petitions for execution, review, revision, withdrawal, compromise or other petitions, affidavits or other documents as shall be deemed necessary or advisable for the prosecution of the case in all its stages. Filing of the application for '' setting aside the ex parte judgment and decree is certainly a step towards the prosecution of the case in all its stages.

Learned counsel for the petitioner has submitted that the counsel''s absence was no ground to set aside the ex parte judgment and decree. It is the client''s absence without reasonable cause or excuse, which can be a ground for setting aside the ex parte decree but not counsel''s. In support of this submission he drew my attention to Gangina Veera Venkamma Vs. M. Venkataramayya,

It would bear repetition that in this case defendants themselves could not be present before the Court as Sukhjit Kaur was away to America in connection with her treatment.

Learned counsel for the petitioner has lastly submitted that application for setting aside ex parte decree was not verified. Suffice it to say when it was supported by an affidavit of Shri Gulshan Arora. Advocate, it was as good as if it had been verified by him.

For the reasons given above, this revision fails and is dismissed..