Malook Singh vs Baljit Singh

M.S. Liberhan, J. (Oral)

The peculiar facts giving rise to this revision petition are that the plaintiff filed a suit for the recovery of Rs. 23,145/ in January 1985 on the basis of a pronote which was decreed exparte on April 8, 1985. An application for a setting aside the exparte decree was preferred on July 17, 1985 inter alia , contending that no service had been effected on the defendant nor he has refused the summons. The summons were never tendered to him for service and the exparte decree was procured by the plaintiff by fraud. The issues were framed and the application was being contested on merits when the same was dismissed in default on July 25, 1986. An application to restore the said application was preferred on August 25, 1986 on the ground that absence of the petitioner was not intentional as. the counsel was busy in the District Courts before District Judge when the application was called and the petitioner defendant was himself not present as he was ill.

The courts below after appreciating the evidence found that applicant failed to prove that he was alling on the dale of bearing. It was further observed that nonappearance of the counsel does not constitute a sufficient cause for restoration. It was further observed that the decree had already been satisfied and the proceedings were being taken to harass the plaintiffs

Learned counsel for the petitioner contends that for the ills of counsel, the petitioner should not be made to suffer. Even if the petitioner failed to prove sufficient cause strictly and was negligent, cost is the panacea. It is contended in the course of arguments that the suit was filed in January, 1985 while the refusal of the defendant on the summons was recorded on January 15, 1985 without there being any attesting witness in whose presence the refusal was made. The petitioner is only praying for a chance to prove that the refusal recorded on the summons is fraudulent and he was never served. Counsel also relied upon Smt. Chander Kanta v. M/s. Sulekh Chand Sumer Chand, 1978 RLR 326 and Buta Singh v. Puro and another, 1979 PLJ 259. The conspectus of these judgments is that ordinarily cases dismissed in default should be restored unless gross negligence of the parties is shown. The sins of advocate should not be allowed to visit the party, as the object of the courts is to advance justice and not to gag the same. A party should not be permitted to play the game of chess relying on the procedural rules, in order to deprive the litigant of his substantive fight.

Counsel for the respondent contends that there is no error of jurisdiction exercised by the lower appellate Court and since the decree had been satisfied, there are no grounds to interfere with the order in the revisional jurisdiction.

Taking into consideration, the peculiar facts and circumstances of this case, there is no gainsaying the fact that absence of the lawyer does not constitute sufficient cause for restoration of the proceedings particularly in view of the provisions embodied in the Code of Civil Procedure 1976. In the course of arguments, there is not dispute or rebuttal that on July 25, 1986 the applicant was not required to be present in Court in personal. Even if he has failed to prove his illness, he has done what could have been possible for him to do viz. to engage a counsel and instruct him. It is the gross negligence of the lawyer that the petitioner has met this fate. Keeping these facts and circumstances in view and the judgment reported in Rafiq and another v. Munshilal and another, AIR 1981 SC 1400 and taking note of the fact that various principles laid down in the judgments cited above have not been taken note of by the courts below, the impugned order is set aside on payment of Rs. 500 as costs. This order is being passed keeping in view the peculiar facts and circumstances of the present case and it will not be considered as a precedent. This petition is disposed of accordingly.