Sita Devi vs Tulsi Devi etc.

R.S. Pathak, C.J.—This is a Defendant''s revision petition against an order of the learned District Judge, Simla, dismissing an appeal against the order of the trial court refusing to set aside an ex-parte decree and declining to condone the delay in applying under Order 9, Rule 13 of the CPC for setting aside the ex-parte decree.

The Respondent, Tulsi Devi, filed a suit for possession of land against the Petitioner and the other Respondents. The Petitioner was duly served with notice of the suil and she appointed Shri R.S. Puri, Advocate, as general attorney to respresent her in the suit. Shri Puri appeared as her attorney on the dates fixed over a number of months in the suit. During the recording of the evidence he cross-examined the Plaintiff''s witnesses but when the occasion arose for producing the Defendant''s evidence in April, 1967, he absented himself, and thereafter he did not appear at all in the case. On April 4, 1967, when the Petitioner and Shri Puri were both absent the court decided to proceed ex-parte. On July 11, 1967, an ex-parte decree was made in favour of the Plaintiff. On September 28, 1967, the Petitioner applied under Order 9, Rule 13 of the CPC tor setting aside the ex-parte decree. The Petitioner alleged that she came to know of the ex-parte decree on September 24, 1967, and urged that there was sufficient cause for setting it aside inasmuch as she had appointed Shri Puri as attorney to contest the suit and that although she had from time to time enquired from him whether her presence was necessary or if arrangements for producing evidence were to be made, he had always put her off with the assurance that he was looking after the case and would let her know when her presence was required. The Petitioner''s case was that Shri Puri had colluded with the Plaintiff and allowed the ex-parte decree to be passed. Two issues were struck by the trial court, one of them being whether there was sufficient cause for setting aside the ex-parte decree and the other being whether the application for setting aside the decree was within time. The trial court decided both the issues against the Petitioner and dismissed her application. The Petitioner appealed to the learned District Judge.

The learned District Judge has considered both the questions, whether there was sufficient cause for setting aside the ex-parte decree and also whether there was sufficient cause for not making an application in that behalf within time. The case of the Petitioner is that her attorney, Shri Puri, colluded with the Plaintiff and she had been a victim of fraud. The learned District Judge has not accepted that case but has proceeded on the assumption that Shri Puri was guilty of negligence, and on the basis that the negligence of the attorney should be considered to be negligence of the party he has held that no sufficient cause has been made out. It seems to me that the learned District Judge has mis-directed himself in law, and because of an erroneous approach in law he has proceeded with illegality and material irregularity in arriving at his decision.

The learned District Judge has assumed that if the Petitioner has been unable to establish that Shri Puri had colluded with the Plaintiff and practised fraud on her, then it must be held that in omitting to appear in court for the Petitioner Shri Puri was acting with negligence. The learned District Judge has thus assumed that Shri Puri''s absence must be attributed to his negligence. This assumption is not warranted. Merely because the attorney is not shown to have been colluding with the Plaintiff does not necessarily imply that his absence was due to his negligence. Between the two extremes other positions can arise. It is not impossible that Shri Puri for reasons of his own decided to absent himself from the proceedings. It is strange that Shri Puri, who had been appearing regularly for the Petitioner in the suit, decided suddenly not to appear any more for her. If it was a case of mere negligence there would have been evidence to show that Shri Puri was still interested in appearing in the case and indeed would have made some attempt to do so before the suit was decreed ex-parte. The conduct of Shri Puri appears to point to one conclusion only, and that is that he had deliberately decided that he would no longer participate in the proceedings on behalf of the Petitioner. Clearly, it is not a case of negligence on the part of Shri Puri. That being so, no question arises of his negligence as attorney being treated as the negligence of the Petitioner.

The learned District Judge has also come to the finding that the petitionei herself was guilty of negligence. In coming to that finding, it seems to me from the evidence on the record that he has mis-read the evidence and failed to appreciate significant portions of it. When examining a question whether a party is guilty of negligence all the circumstances of the case have to be seen. In this case what is of importance is the circumstance that the Petitioner is evidently not an educated person and that she was content to leave the conduct of her case in the hands of her attorney, Shri Puri. It appears from the testimony of the Petitioner, who has appeared as A.W. 3, that she was apprehensive of danger to herself at the instance of the Respondent and in fact filed a complaint with the police in that behalf. It appears that on that report some proceedings were taken before the Sub-Divisional Officer. Whether the apprehension was justified or not, the evidence discloses that the Petitioner left for Chandigarh without intimating her address. In April 1967 she entered the employment of Shri S. K. Misra, then Principal Secretary to the Chief Minister of Haryana, at Chandigarh in whose house-hold she worked as a domestic servant. The material on the record shows that Shri Puri had assured her that he would look after the case and would inform her in the event of her presence in court being necessary. There is nothing to show that Shri Puri ever attempted to communicate with the Petitioner about the proceedings as they developed in the suit. The evidence discloses that the Petitioner kept meeting Shri Puri at Chandigarh until she shifted to the house of Shri Misra. It is difficult to believe that Shri Puri did not know of the change in her address. It is common experience that in case an attorney loses contact with his principal or client because of a change in the latter''s address, hs ordinarily intimates this fact to the court and applies for time to ascertain the whereabouts of the principal or client for taking instructions. No material has been placed before me by the Respondent evidencing any such conduct on the part of Shri Puri. It appears that Ram Singh, A.W. 2, who is a tenant with the Petitioner on the land, was aware of the litigation and used to attend the court. When the Petitioner left for Chandigarh she entrusted this witness with the duty of keeping in touch with Shri Puri in case her presence was required in court. The witness has deposed that thereafter he met Shri Puri some times, but the latter merely assured him that if the presence of the Petitioner or her witnesses was required he would let him know. A week or two later, the witness says, he came to know of the ex-parte decree. Immediately thereafter, within a day or two, he went to one Dasundhi Ram of village Bhaliyana near Chandigarh, who was a Dharambhai of the Petitioner, to inquire about her whereabouts. He ascertained the Petitioner''s address from him and then proceeded to the house of Shri Misra to inform her about the ex-parte proceeding. If all this material is taken into account, and there is no reason why it should not be, it is evident that had Shri Puri been so minded he would have made some attempt to be in touch with the Petitioner. It is difficult to understand why Shri Puri made no such attempt. Although he was present in court at the time when the evidence of Ram Singh was recorded, no attempt was made by the Respondent to produce him as a witness to rebut the testimony of Ram Singh. What was the reason which induced Shri Puri to abandon interest in the case is difficult to infer. That information could have been best obtained if Shri Puri had appeared in the witness box. The learned District Judge has observed that it was for the Petitioner to have produced him. That observation clearly demonstrates the wholly erroneous approach which the learned District Judge brought to bear upon this case. Having regard to the allegation of the Petitioner that Shri Puri had colluded with the Plaintiff, it was unreasonable to expect that the Petitioner would have produced Shri Puri as her witness. It was after the Petitioner came to know of the ex-parte decree from the witness Ram Singh that she took steps to apply for setting aside the ex-parte decree and consulted Shri Jitender Kumar, Advocate, for that purpose. Thereafter the application for setting aside the ex-parte decree was filed.

The learned District Judge has pointed out that the Petitioner took as long as ten days for applying for setting aside the ex-parte decree, and the burden rested on her to explain the delay of every day. The learned District Judge has failed to consider the testimony of the Petitioner that after coming to know of the ex-parte decree from the witness Ram Singh she proceeded to her counsel, Shri Jitender Kumar and consulted him in the matter, and then the application was filed for setting aside the ex-parte decree. It is common knowledge that some time is necessarily taken in contacting counsel, consulting him and engaging him for taking legal proceedings. Counsel would also take time to prepare the application. The circumstances of the Petitioner must also not be lost sight of. Her station in life and the poor knowledge she could have had of the urgency of taking proceedings are all factors which legitimately call for consideration in examining the question of delay.

In my opinion, the Petitioner has succeeded in showing sufficient cause or setting aside the ex-parte decree and for condoning the delay in applying in that behalf. The finding of the learned District Judge to the contrary is vitiated by an erroneous approach to the case, by his drawing assumptions unwarranted in law and by his failing to consider material evidence on the record. His order suffers from a jurisdictional error and warrants interference by this Court u/s 115 of the Code of Civil Procedure.

Learned Counsel for the Respondent relies upon Musammat Mahtab Kuer Vs. Musammat Birhmo and Others, and Pandit Krishna Rao Dallatraya Phalke v. Trimbak and Ors. AIR 1938 Nag. 156 in support of the proposition that the negligence of the pleader''s clerk must be considered as negligence of the party engaging such pleader. As I have already pointed out, the circumstances do not warrant the inference that the absence of Shri Puri from the court after March, 1967 was due to his negligence. These cases, therefore, do not help the plantiff. Learned Counsel also relics upon The The Punjabi University, etc. Vs. Acharya Swami Ganesh and Another, where the Supreme Court lias laid down that the bona fide mistake of counsel in calculating the limitation for an appeal does not amount to sufficient cause for condoning the delay in filing the appeal. The case before me is very different. Then learned Counsel for the Respondent refers me to Manindra Land and Building Corporation Ltd. Vs. Bhutnath Banerjee and Others, in which the Supreme Court has observed that the question whether there is sufficient cause for granting the benefit of Section 5 of the Limitation Act is a matter falling within the exclusive jurisdiction of the trial court and is not amenable to interference by the High Court u/s 115 of the Code. This proposition docs not prevent a party from seeking relief from the High Court u/s 115 of the Code where it can establish that the court below acted illegally and with material irregularity in the exercise of its jurisdiction. Where the court below has mis-read material evidence on the record or has not considered material evidence or has proceeded on assumptions not warranted in law, it is a case for interference by the High Court in the exercise of its revisional jurisdiction. The decision of this Court in The Palhankot Bajri and Stone Company v. The Himachal Bajri Company and Anr. is distinguishable.

The revision petition is allowed, and the orders of the courts below are set aside. The delay in making the application under Order 9, Rule 13 of the Code is condoned, the application under Order 9, Rule 13 is allowed and the ex-park decree made against the Petitioner is set aside. The suit shall be restored to its original number and the trial court will now proceed from the point where the evidence of the Plaintiff had been recorded. There is no order as to costs.