Sarwan Ram and Another vs Harnek Singh and Another

A.L. Bahri, J.—On July 11, 1990 Civil Revision was dismissed and the order was passed as Under :--

"Counter claim submitted at the time of filing written statement cannot be excluded Dismissed."

This order was passed in the absence of the counsel for the petitioners. The present application has been filed u/s 151 of the CPC for recalling the said order. The grounds mentioned therein briefly are to the following effect :--

On July 11, 1990 counsel for the petitioners could not appear in Court in view of the unanimous resolution of the High Court Bar Association. Non-appearance of the counsel for the petitioners was not wilful or delibrate, but was due to the circumstances entirely beyond his control. The Revision Petition was dismissed, because the correct facts and circumstances could not be brought to the notice of the Court. The High Court Bar Association unanimously resolved on July 16, 1990 that the members of the Bar, whose cases had been dismissed/decided ex-parte during the relevant period, may move applications for setting aside ex-parte orders and for recalling the ex-parte orders and that the Members of the Executive Committee of the Association would appear therein on their behalf. That is why according to the petitioners, the present application has been filed.

I have heard Sh. L.N. Verma on merits also.

Fixing of the case for hearing in the ''cause list'' is a sufficient notice to the Advocate and sufficient compliance of the provisions of the CPC for affording an opportunity to the counsel to present his case. Order 41 Rule 11 of the Code of Civil Procedure, which applies to appeals, provides for fixing a date of hearing and if the counsel appears on that date, to be heard. The same principle can legitimately be applied to the Civil Revisions. If the Court has given opportunity of hearing to the counsel and the counsel absents it can be taken as sufficient opportunity of heating being given.

It is not for this Court Jo make any comments on the causes for which the Bar Association had given call for strike. However, the fact remains that the counsel absented from the Court intentionally and delibrarely and in that case he should visualise the consequences that can flow there from Per se on the ground that the counsel abstained from the Court on account of the call given by the Bar Association for strike cannot be a ground for restoration of the case which has been disposed of. In the present case, as already stated above, the Revision Petition was disposed of on merits. That being the position, that order cannot be considered simply dismissal of the appeal on account of nonappearance of the counsel.

Even on merits. I have heard counsel for the petitioners and find no substance therein. From the perusal of the written statement, produced by the counsel, I find that counter claim was made therein. The Judgment on which reliance is placed by counsel for the petitioners in Bank of Baroda v. Gurcharan Singh, (1986 1) 89 P. L. R. 46, is not at all applicable to the case in hand on facts. Therein a written statement was sought to be amended to include the counter claim and it was held that the same could not be permitted. In the present case, as already state d above, counter claim was made in the written statement, which is also the requirement of the Code. Such a counter claim simply cannot be ignored on the ground that it should have been separatey filed before filing the written statement. The rules of the CPC are meant to advance justice and on these technicalities the administration of justice is not going to be hampered.

For the reasons stated above, this Misc Application is dismissed.