Bharat Sanchar Nigam Ltd. vs The ICICI Bank Ltd.

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 15.09.2012 passed by learned Civil Judge (Junior Division), Kamal, whereby application moved by the petitioner/plaintiff for restoration of suit has been dismissed. Shorn of unnecessary details, the facts giving rise to the present petition are to the effect that petitioner filed a suit against the respondent/defendant for recovery of an outstanding amount of Rs. 1,23,928/- along with interest at the rate of 18% per annum for non-payment of telephone bills against telephone No. KRM-22-69900 for the telephone services provided by the petitioner to the respondent. During the course of proceedings, respondent/defendant moved an application dated 05.10.2011 eliciting the details of phone calls made along with list of documents on which the suit rested. Petitioner/plaintiff filed reply to the said application. On 27.07.2012 suit filed by the petitioner/plaintiff was dismissed under Order 9 Rule 3 CPC. Petitioner moved an application for restoration of the suit, however, the said application was also dismissed vide impugned order. Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

Admittedly, the suit was dismissed in default on 27.07.2012 and thereafter application for restoration of suit was filed. The trial court has dismissed the application. On 27.07.2012 the case was fixed for arguments on application for supply of documents filed by the respondent/defendant to which the petitioner had already filed reply. The court instead of deciding the application proceeded to exercise powers under Order 9 Rule 3 CPC and dismissed the suit in default. There was no negligence on the part of the petitioner. The counsel for the petitioner did not appear on the date fixed due to call of the District Bar Association, Karnal, to boycott court work. Although the Constitutional Bench of Hon''ble Supreme Court in Ex-Capt. Harish Uppal Vs. Union of India (UOI) and Another, has in categoric words observed that strike by advocates amounts to professional misconduct and even contempt in some cases, yet instances are numerous where due to strike by the advocates innocent litigants are made to suffer, like petitioner in the instant case. Although strike by Bar is not itself a sufficient ground for restoration of suit dismissed in default nevertheless the law is equally well-settled that a party cannot be made to suffer due to fault of his advocate.

In RAMON SERVICES (P) LTD. Vs. SUBHASH KAPOOR, , while dealing with a case where the appellant was proceeded ex-parte due to strike by the Bar, the Hon''ble. Supreme Court observed as under:-

But the fact remains that appellant was set ex-parte due to the absence of the appellant and his counsel in the court when the case was taken up for hearing. In the special circumstances of this case we are inclined to set aside the exparte order dated 26.8.1998, on some terms.

In the light of the consistent views of the judiciary regarding the strike by the advocates, no leniency can be shown to the defaulting party and if the circumstances warrant to put such party back in the position as it existed before the strike, in that event, the adversary is entitled to be paid exemplary costs. The litigant suffering costs has a right to be compensated by his defaulting counsel for the costs paid. In appropriate cases the court itself can pass effective orders, for dispensation of justice with the object of inspiring confidence of the common man in the effectiveness of judicial system. In the instant case respondent has to be held entitled to the payment of costs, consequent upon the setting aside of the ex-parte order passed in his favour.

In view of above, the instant revision petition is allowed, impugned order dated 15.09.2012 is set aside and suit is restored to its original number, subject to costs of Rs. 40,000/- out of which Rs. 5,000/- shall be paid by the petitioner to the respondent and Rs. 35,000/- shall be deposited with the District Legal Services Authority, Karnal. The parties through their counsel are directed to appear before the trial court on 13.12.2013.