Madan Mohan Ahuja vs Union of India (UOI)

V.S. Aggarwal, J.—The present revision petition has been filed by petitioner Madan Mohan Ahuja directed against the order of the learned Rent Controller, Abohar, dated 16.11.1998. The learned Rent Controller by virtue of the impugned order allowed the application filed by the respondent-Union of India.

The relevant facts are that the petitioner had filed an eviction application u/s 13 of the East Punjab Urban Rent Restriction Act, 1949, for ejectment of the respondents from the property in question. During the pendency of the petition for eviction, the respondents had been proceeded ex-parte. In the meantime, a number of witnesses were examined by the petitioner. The respondents preferred an application for setting aside of the ex-parte proceedings dated 29.1.1998. It had been asserted that the Central Government had appointed Shri M.L. Chugh, Advocate, at Ferozepur as the counsel for the respondents for conducting their cases. After the expiry of the term of Shri M.L. Chugh, Shri Raj Pal Singh Gill, Advocate, was appointed as Additional Standing Counsel for Union of India. Shri Raj Pal Singh Gill, Additional Standing Counsel, did not appear nor he informed the respondents about the proceedings in the Court. On 25.7.1998 the respondents came to know of the ex-parte proceedings. The respondents contacted the Additional Standing Counsel to appear but he failed to do so. The respondents approached the higher authorities for engaging a new counsel. In these circumstances it was prayed that the ex-parte proceedings against the respondents be set aside.

In the reply filed, the petitioner contested the application. The petitioner has alleged that on the first date of hearing rent was not tendered. The respondents were proceeded ex-parte on 29.1.1998. In the meantime, entire evidence of the petitioner had been recorded. There are no sufficient grounds for setting aside of the ex-parte proceedings.

The learned Rent Controller, Abohar, vide the impugned order held that the respondents had been very casual and callous in their approach but, keeping in view the interest of the Union of India, it was further held that they should not suffer for the failure of their counsel. Accordingly, ex-parte proceedings were set aside on payment of Rs. 500/- as costs.

Aggrieved by the said order, present revision petition has been filed.

On behalf of the petitioner, it was pointed out, that the respondents filed written statement on 13.2.1997. The replication was filed on 21.4.1997. On the same date, issues were framed and the petition was adjourned to 6.8.1997 for evidence. Thereafter, it was adjourned to 28.1.1998. On that date, there was no appearance on behalf of the respondents. Even on 6.8.1997 and 13.11.1997 there was no appearance on behalf of the respondents. The result was that on 28.1.1998 the respondents were proceeded ex-parte. Even after the respondents had been proceeded ex-parte, the matter had been adjourned a number of times and ex-parte evidence was recorded. Thus according to the learned counsel there was no sufficient ground for setting aside of the ex-parte proceedings.

Order 9 Rule 7 of the CPC (for short "the Code") reads as under :-

"7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance:- Where the Court has adjourned the hearing of the suit ex-parte, and the defendant, at or before such hearing, appars and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance."

A perusal of the above quoted provision would show that before ex-parts proceedings can be set aside, the concerned person must assign good cause for his previous non-appearance. It almost means that it is sufficient cause. The expression assigns good cause has not been defined. But, normally it would be an act or a fact, beyond the control of the concerned person.

The facts in the present case are that the respondents had engaged a counsel. His term came to an end/Thereupon, one Shri R.P.S. Gill, Advocate, was appointed as Additional Standing Counsel for Union of India. He did not put in appearance. In the meantime, the respondents were proceeded ex-parte. When the respondents came to know that they had been proceeded ex-parte, an application was filed for setting aside of the ex-parte proceedings.

As held by the Full Bench of the Jammu and Kashmir High Court in the case of Shyam Lal Dhar Vs. Ply Board Industries, it is difficult to lay down any inflexible rule on the question whether a litigant can be held responsible for the negligence of the counsel. Each case has to be examined on its own facts. However, where the defendant employs a counsel for the purpose of his appearance in the Court and he neglects, his neglect would constitute a sufficient cause for the non-appearance of the defendant. After all, the litigants rely upon the counsel for appearance on each date of hearing. Same view prevailed with the Supreme Court in the case of Udayan Chinubhai v. R.C. Bali AIR 1977 SC 2319. In paragraph 37 of the judgment, Supreme Court held as under:-

"Even otherwise, in the entire circumstances of the case disclosing sheer indifference, perhaps negligence on the part of the Advocate. Shri Bharatinder Singh, and no laches, whatever, on the part of the appellant, we would have been inclined to condone the delay of 12 days u/s 5 of the Limitation Act."

The facts are identical. The respondents relied upon their Additional Standing Counsel. He did not care to appear. It cannot be expected that the respondents would watch each and every hearing in this regard. When they were relying on their counsel who was totally negligent, the learned Rent Controller rightly held that there was a good cause for the absence of the respondents.

There is another way of looking at the matter. The learned Rent Controller has exercised the jurisdiction and set aside the ex-parte proceedings. Once the discretion has been exercised and it is not an error of jurisdiction or an arbitrary exercise of power, this Court finds no reason to interfere.

As a result of the aforesaid, there is no ground to interfere in the impugned order. The revision petition must fail and is accordingly dismissed.