Dikshant Sharma vs Gaindi Lal Jain

Shiv Kumar Sharma, J.—On June 2,1997 the petitioner filed an application under Order 9 Rule 13 CPC before the learned Additional Civil Judge (Senior (Division) No. 2. Jaipur District Jaipur seeking quashing of the exparte decree dated November 28.1995 on the ground that he never instructed Shri Surendra Singh Shekhawat Advocate to appear on his behalf, but the advocate filed his Vakalatnama on Jan. 17,1991 on behalf of the petitioner in the suit instituted by the plaintiff respondent. It was also averred that Shri Surendra Singh Shekhawat Advocate did not appear in the suit and the suit proceeded exparte on August 27,1993. The petitioner came to know for the first Li me on June 1,1997 that exparte decree in the suit was passed against the petitioner on November 28,1995. Under those circumstances the petitioner prayed that the exparte decree deserve to be set-aside. The learned Additional Civil Judge dismissed the application vide order dated July 12,1999. The petitioner preferred appeal against the said order under Order 43 Rule 1 CPC. The learned Additional District Judge No. 2 Jaipur District Jaipur vide judgment dated August 9,1999 dismissed the appeal. The concurrent findings of the courts below have now bee assailed in the instant revision by the defendant petitioner.

Mr. Sudhanshu Kasliwal, Learned Counsel appearing for the petitioner at the outset submitted that the allegations levelled against counsel Sarva Shri Surendra Singh Shekhawat and Bhagirath Singh Shekhawat be treated as abandoned. An application duly signed by the petitioner supported by his affidavit has also been filed before this Court by the Learned Counsel which has been kept on record. The only contention of the Learned Counsel is that the petitioner had no knowledge about the exparte proceedings and exparte decree. It was the duty of the counsel of the petitioner to appear continuously on behalf of the petitioner in the suit or if he did not want to appear he ought to have informed the petitioner but without such information the exparte proceedings and ilie exparte decree passed against the defendant petitioner deserve to be set-aside. reliance was placed on Smt. Gayatri v. Mahaveer Prasad RLW 1997(2) Raj. 1208. Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, Malkiat Singh and Another v. Joginder Singh and Others ( AIR 1998 SC 253). Smt. Lachi Tewari and Others Vs. Director of Land Records and Others, Dank of India v. M/s. Mehta Brothers and Others ( AIR 1991 Del 194) and L/Naik Mahabir Singh v. Chief of Army Staff (1990 (Supp.) SCC 89 (1).

On the oilier hand, Mr. B.S. Shekhawat. Learned Counsel appearing for the plaintiff respondent supported the impugned judgments and placed reliance on Jagdish Lal v. Madan Lal ( 1960 RLW 606), State v. Manjt and 12 Others (1985 WLN (UC) 181) and Radha Mohan Datt, Silk Merchant v. Abbas Ali Biswas and Others (AIR 9131 All 294),

I have reflected over the rival submissions and carefully scanned the material on record as well as the case law cited before me.

A look at the provisions contained in Order 9 Rule 13 CPC demonstrates (hat the petitioner can seek top set-aside exparte decree on the ground that he was prevented by any sufficient cause from appearing when the suit was called on for hearing and when the final decree was passed. Order 9 Rule 13 CPC sets out two alternative grounds for having the exparte decree set-aside. The applicant can satisfy the court that (1) the summons was not duly served; or (2) he was prevented by any sufficient cause from appearing when the suit was called on for hearing.

In the instant case as counsel Shri Surendra Singh Shekhawat filed Vakalatnama on behalf of the petitioner in the court it will be presumed that summons was served upon him. Though in the application the petitioner has averred that he never instructed Shri Surendra Singh Shekhawat to appear on his behalf but as the petitioner has abandoned this argument, I proceed to consider only the second aspect as to whether the petitioner was prevented by any sufficient cause from appearing when the suit was called on for hearing. At the same time I have also to consider the argument raised by Mr. B.S. Shekhawat, Learned Counsel appearing for the plaintiff respondent in the light of the Full Bench judgment of the Allahabad High Court in Radha Mohan v. Abbas Ali (supra) as to whether it will be presumed after appearance of the counsel for the petitioner in the suit that he was proceeded exparte. The Full Bench of the Allahabad High court in Radha Mohan v. Abbas Ali (supra) indicated that where some of the defendants were represented by a pleader who presented an application for examination of witnesses on commission, which was rejected by the court as being unnecessary, and therefore the pleader withdrew as having no instructions to proceed with, the case, and the case proceeded on merits, decreeing the claim, against the defendants, the suit could not be said to be decided exparte.

A look at the proceedings of the trial court reveals that the suit came to be instituted by the plaintiff respondent on January 16, 1991. On January 17. 1991 Shri Surendra Singh Shekhawat Advocate filed his Vakalatnama on behalf of the petitioner. On April 15,1993, an application was filed by the plaintiff to delete the name of the defendant No. 1 Shri Gopal Sharma and name of Shri Gopal Sharma, defendant No. 1 was accordingly deleted from the plaint. The advocate Shri Surendra Singh Shekhawat, continuously appeared before the court on behalf of the petitioner. The case thereafter transferred to the court of Munsif and Judicial Magistrate Jaipur district Jaipur. On July 29,1993 counsel Shri Surendra Singh Shekhawat appeared before the court and the case was-posted for filing written statement on August 27,1993 and on August 27, 1993 the defendant and his advocate did not appear before the court and the defendant petitioner was proceeded exparte. Thereafter the case was adjourned from lime to time and ultimately vide judgment and decree dated November 28, 1995 the suit of the plaintiff respondent was decreed.

A further look of the record also goes to show that on January. 17, 1991.an application was.fi led on behalf of the petitioner. for appointment of Commissioner. The said application was duly signed by the petitioner Dikshant Shanna as well as his counsel Shri Surendra Singh Shekhawat. Reply to the application under Order 39 rules 1 and 2 CPC was also filed on behalf of the petitioner Dikshant Sharma on January 19. 19,91 duly signed by the petitioner and affidavit attested by Oath Commissioner was also annexed with the reply.

In the support of the application under Order 9 Rule 13 CPC the petitioner ^examined himself and he admitted his signatures on Vakalatnama, application seeking appointment of Commissioner, reply to the application under Order 3, Rules 1 and 2 CPC and also on affidavit.

In the application under Order 9 Rule 13 CPC the contention of the petitioner is that he came to know about the exparte decree for the first lime on June 1. 1997. As already stated, the application under Order 9 Rule 13 CPC was filed on June 2. 1997 for set aside the exparte decree passed on November 28, 1995. Undeniably the application was barred by limitation but no application u/s 5 of the Limitation Act seeking condonation of delay has been filed. The contention of Mr. Sudhanshu Kasliwal, Learned Counsel appearing for the petitioner is that even oral application can be accepted and delay can be condoned. In support of his contention Mr. Kasliwal, Learned Counsel placed reliance on L/Naik Mahabir Singh v. Chief of Army Staff (supra). Before their Lordships of the Supreme Court SLP (Criminal) was filed beyond the period of limitation without any, application for condonation of delay. As it was a case of summary court material, their Lordships of the Supreme Court accepted the Oral prayer of the counsel and condoned the delay in filling the petition. I am unable to agree with the submission advanced before me by Mr. Sudhanshu Kasliwal, Learned Counsel in the facts and circumstances of this case. It was the duty of the petitioner to explain the delay in filling application under Order 9 Rule 13 CPC. Grounds of delay incorporated in the application ought to have been explained in the application and which ought to have been supported by affidavit. There has been negligence on the part of the petitioner. The said negligence can be termed as culpable and inexcusable in the facts and circumstances of this case. Both the courts below have properly appreciated the material on record as well as the evidence of the petitioner and I do not sec any jurisdictional error in the concurrent finding arrived at by the courts below, Counsel Shri Surendra Singh Shekhawat regularly appeared in the trial court and sought time to file written statement but it appears that the petitioner did not approach his counsel. The petitioner was not vigilant and he never made any attempt to contact his counsel, The counsel did not plead no instructions in the matter therefore the ratio of Smt. Gayatri v. Mahaveer Prasad (supra) is not applicable in the instant case.

In Tahil Ram Issardas v. Ramchand Issardas (supra) their Lordships of the Supreme Court was of the view that party in person was not at fault and as such should not be made to suffer. But in the instant case as already observed the petitioner himself was at fault in hot appearing before the learned trial court.

In Malkiat Singh and Another v. Joginder Singh and Others (supra) counsel. pleaded no Instructions and the defendants got the knowledge of the exparte decree only when they approached the counsel. Therefore the case of Malkiat Singrrtsupra) is distinguishable. In Bank of India v. Mehta Brothers (supra), the defendant remained under belief that its case was being conducted all along by its lawyers'' and since they came to know about exparte decree they took inundate steps. Under thoracic remittances, the Delhi High court was of the View that there was sufficient cause for setting aside the exparte decree.

In the instant case the petitioner has not averred in the application that he was under belief that his case was being conducted by his lawyer, therefore he did not appear. On the contrary the petitioner made allegations against his counsel which were subsequently abandoned.

In view of what I have observed above. I do not find any jurisdictional error in the impugned orders and if the orders are allowed to stand failure of justice would not be occasioned.

Consequently, the revision petition fails and is hereby dismissed with costs.