Pirag Chand vs Firm Ramlal Channanmal

Jasraj Chopra, J.—This revision arises out of an order passed by the learned Addl. Sessions Judge No. 2, Sri Ganganagar dated 18-8-87 whereby the learned trial court has dismissed the application of the petitioner filed und under Order 9 Rule 7 CPC.

The facts necessary to be noticed for the disposal of this appeal briefly stated are: that the plaintiff firm Ramlal Chananmal of. Sri Ganganagar filed a suit for recovery of Rs. 35360A against defendant firm Kailash Flour Mill & Oil Mill and the petitioner Shri Pirag Chand on the ground that defendant 2 Pirag Chand gave out himself, as the owner and partner of this shop and it is the defendant 2 who has entered into some contracts with the plaintiff firm prior to 17-4-78 and on that day, after settling the accounts, he executed a ''Rukka'' in favour of the plaintiff for an outstanding amount of Rs. 26000/. It is, therefore, claimed that the plaintiff is entitled to recover this amount along with interest from the defendants.

The summons of the suit were served on both the defendants. The suit was filed on 24-3-81 and the summons of the suit were served on the defendants prior to 17-11-81, Shri Bheekam Chand Jain, Advocate put in appearance on behalf of both the defendants including the present petitioner and filed a ,Vakalat Nama on that date i.e, 17-11-81 and sought time to file the written statement. On 17-12-81, time was sought for inspection of the account-books. After inspecting the account books a written statement was filed on behalf of defendant 1 on 8-2-82 in which it was claimed that Shri Pirag Chand has nothing to do with defendant firm. He is neither a partner of this firm nor the owner of the firm, and, therefore, he has been misjoined as a party to the suit. It is alleged that defendant 2 Pirag Chand petitioner was advised by his advocate not to file any written statement because he was neither the owner of the defendant firm nor its partner and so he has nothing to do with the dealings of this firm. Accordingly, no instructions were pleaded on behalf of the defendant 2 and it was ordered that the suit be proceeded ex parte against defendant 2. Later, it appears that the suit was transferred for trial by the learned Distt. Judge to the Court of learned Addl. Sessions Judge No. 1, on 14-7-82 and after about three years, the suit was transferred from the Court of learned A. D. J. No. 1 to the Court of learned A. D. J.No. 2 on 25-9-85. It is alleged that no notice of this transfer was given to the defendant 2. Later, it is alleged that the suit was dismissed on 12-2-87 by the learned ADJ No. 2 but it was restored back to its original number and was fixed for the evidence of the complainant on 27-2-87, It is claimed by the petitioner that as no notice of this date was given to him and as such, he could not present himself before the Court on that day. Some evidence was recorded on 27-2-87 and later, the case fixed on 9-4-87. Prior to 9-4-87 i.e. on 6-4-87, this application was filed in which it was contended that Shri Chanan Mal P. W. 1 has stated certain wrong facts about defendant 2 and so it has become essential for defendant 2 to rebut them and, therefore, it was prayed that the ex parte order be set aside and he be allowed to participate in the proceedings. This application was supported by an affidavit of Shri Pirag Chand. Actually the affidavit that has been filed by Pirag Chand is not an affidavit in the eye of law. Be that as it may, this application was opposed by the plaintiff firm, on whose behalf a reply was filed on 2-5-87 along with an affidavit of Chananmal dated 2-5-87. This affidavit filed by Shri Chanan Mal is also not an affidavit in the eye of law. The learned trial court after hearing both the parties dismissed this application of Shri Pirag Chand petitioner for setting aside the ex parte decree and hence this revision.

I have heard Mr. M. L. Shreemali learned counsel for the petitioner at length as regards the admission of this petition. Order 9 Rule 6(i)(a) provides that if the summons of the suit are served on the defendant and he does not appear in the Court then the Court may make an order that the suit be heard ex parte. In this case, the summons of the suit was served on defendant 2 and Shri Bheekamchand Jain, Advocate filed power on his behalf in the Court on 17-11-81. Two adjournments were sought for filing the written statement and ultimately on 18-2-82, written statement was filed on behalf of defendant No. 1 but no instructions were pleaded on behalf of defendant and hence it was ordered that the suit shall proceed ex parte against defendant No. 2 Shri Pirag Chand. This application for setting aside that ex parte order was filed on 18-8-87 i.e. almost after a period of, 51/2 years.

Mr. Shrimali has submitted that no instructions were pleaded on behalf of Shri Pirag Chand Petitioner on the ground that defendant 2 is not the partner or owner of the firm defendant 1 and, therefore, he has nothing to do with the dealings of the firm defendant 1 and hence he was advised by his counsel not to contest the suit. When the suit has been ordered to proceed ex parte against the defendant 2, as he did not elect to, file the written statement on the basis of the legal advise tendered to him at that time, it was not at all essential to give him any notice of the transfer of the suit to the Court of ADJ No. 1 and ADJ No. 2. Once the suit proceeds ex parte against a particular defendant because he elects not to contest the suit it hardly matters whether the suit is tried by the Court of D. J. or it is tried by the Court of ADJ No. 1 or for that matter, by the Court of ADJ No. 2. once he elects not to proceed with the suit he is not entitled to any notice of such a transfer. Even if such a suit is dismissed in default and is restored back, the defendant who is ex parte in the suit is neither entitled to any notice for restoration nor to any notice after restoration. Mr. Shreemalidrewmy attention to a decision in Labhu Ram v. Kuber Dan reported in ILR( 1958) 8 Raj 95 in this respect. I have critically gone through this authority. It was a case where on a particular day, the suit was fixed for evidence. Both the parties were absent and, therefore, the suit was dismissed in default. On the application of the plaintiff, the suit was restored back to its original number and then ex parte evidence was recorded without giving any notice to the defendant of the next date of hearing. That was a case in which no ex parte order under Order 9, Rule 6(i)(a) CPC was passed against the absentee defendant and, therefore, this ruling has no application to the present case. Here, the defendant has elected not to participate in the proceedings and, therefore, the suit was ordered to proceed ex parte against him and so if that suit is dismissed in default after 51/2 years of the making of such an ex parte order for the non appearance of the plaintiff it can safely be restored back to its original number without giving any notice to the absentee defendant against whom the suit is already proceeding ex parte. The defendant against whom the suit is proceedings ex parte cannot claim any notice of the restoration or a notice of the Subsequents dates of hearings after the restoration is ordered.

Mr. Shreemali referred to an authority of their Lordships of the Supreme Court in Rafiq and Another Vs. Munshilal and Another, wherein it has been held that as per the '' present adversary legal system, if a client selects his advocate briefs him and pays him, his fee, he can remain supremely confidant that his lawyer will look after his interest and such an innocent party should not be punished for the negligence of his lawyer. This case has no application to the facts of the present, case. Here, no instructions were pleaded by the counsel for the petitioner on a clear understanding arrived at between the party and his counsel that defendant 2 need not defend this suit because he is neither a partner nor an owner of the firm defendant 1. Thus, it is not a case of any negligence on behalf of, the counsel. Rather it was agreed between the client and his counsel that the suit should not be proceeded with on behalf of defendant 2 and, therefore, no instructions were pleaded '' and hence this authority of their Lords hips of the Supreme Court has no application to the facts of the present case.

My attention was also drawn to a decision of their Lordships of the Supreme Court in Arjun Singh Vs. Mohindra Kumar and Others, wherein it has been observed that in the essence O. 9 Rule 7 is directed to ensure the orderly conduct of the proceedings by penalising improper dilatoriness calculated merely to prolong the litigation. This authority of their Lordships goes against the petitioner instead of giving any support to his case. The defendant consciously elected not to participate in the proceedings because he is neither a partner nor an owner of firm Kailash Flour & Oil Mill This conscious decision was taken by him in spite of the fact that in the plaint it was specifically pleaded that he is the owner or the partner of that firm and it is he who has transacted business on behalf of the defendant 1 with the plaintiff firm and it is he who has executed the ''Rukka'' on behalf of defendant 1 firm in favour of the plaintiff firm. The original ''Rukka'' was filed with the plaint and those documents have been inspected by the counsel of defendant2 along with the account books of the defendant 1 firm. It is not known as to what has been stated by Shri Chanan Mal which goes against the facts pleaded by him in the plaint. If he has supported his plaint, he cannot be accused of pleading wrong or new facts. Nothing has been brought to my notice from which it may be concluded that he has travelled beyond his pleadings. If he has supported the contentions raised in the plaint that cannot be made a ground to set aside an ex parte order after the expiry of five and half years.

Under these circumstances, the learned lower court was perfectly justified in dismissing this application filed by defendant No. 2, under Order 9, Rule 7 CPC

I find no force in this revision petition and, therefore, it is dismissed at the admission stage.