Surinder Kumar vs Ram Nath

K.K. Srivastava, J.—This revision is directed against the order dated 10.4.1997 passed by the Additional District Judge, Sangrur vide which he has dismissed an application of the petitioner for restoration of civil appeal which was dismissed for default of the petitioner on 5.12,1995. A civil suit No. 902 was instituted in the Court of Sub Judge, 1st Class, Malerkotla on 13.5.1991 by respondent Ram Nath against the revisionist Surinder Kumar and Mohan Lal, both sons of Ram Nath aforesaid for the relief of mandatory injunction. The said civil suit was decreed with cost and the defendants, namely, Surinder Kumar revisionist and Mohan Lal were directed to vacate the house involved in the said suit and to deliver its vacant possession to Ram Nath, plaintiff-respondent within one month from the date of the decree. Surinder Kumar preferred Civil Appeal No. 106 dated 3.10.1994 in the Court of District Judge, Sangrur which was transferred to the Court of Shri B.R. Bansal, Additional District Judge, Sangrur for disposal. The civil appeal came up for hearing on 5.12.1995 when Shri R.K. Jain, Advocate represented the appellant Surinder Kumar (revisionist) and pleaded no instructions on behalf of appellant Surinder Kumar. The learned Additional District Judge thereafter dismissed the appeal for want of instructions and ordered the file to be consigned to the record room. The order passed by the learned Additional-District Judge, a copy of which has been placed on record, reads as under :-

"This appeal received by transfer. It be registered. Sh. R.K. Jain, learned Counsel for the appellant pleads no instructions on behalf of the appellant nor the appellant has come present and as such the appeal is dismissed for want of instructions. File be consigned to the record Lower Court records he sent back.

Announced.

Dated 5.12.1995

Su7- (B.R. Bansal) Additional District Judge, Sangrur"

Surinder Kumar petitioner on coming to know of the said order dismissing the civil appeal for want of instructions moved Civil Misc. Application No. 5 of 22,1.1997 praying for setting aside of the said order and for restoring civil appeal for hearing on merit. The civil misc. aforesaid came up for hearing before Shri Pritam Singh, Additional District Judge, Sangrur on 10,4.1997 and the same was dismissed. Feeling aggrieved against the order dated 10.4.1997 dismissing the application for restoration of the civil appeal, Surinder Kumar has filed the civil revision.

Notice was issued to the respondents. Respondent Ram Nath put in appearance through his counsel Shri Baljit Puri, Advocate. Respondent No. 2 was, however, a proforma respondent being a co-defendant and the service of notice on him was dispensed with by the learned Single Judge of this Court vide order dated 23.5.1997.

I have heard learned Counsel for the revisionist and learned Counsel for respondent No. 1 and have perused the impugned orders carefully,

Mr. Singla, learned Advocate appearing for the revisionist submitted that the learned Additional Sessions Judge, before whom the civil appeal came up for hearing on 5.12.1995 when the learned Counsel for the petitioner reported no instructions, ought to have issued notice to the appellant and he could not dismiss the appeal for want of instructions. He has further contended that the appellant, who is the revisionist here, had engaged his counsel and the said counsel Shri R.K. Jain was representing him before the Appellate Court. The revisionist himself had no notice of the actual date of hearing and he was not present when the appeal was taken up for hearing on 12.5.1995 in the Court of Shri R.B. Bansal, Additional District Judge, Sangrur. He has further contended that the learned Additional Sessions Judge Shri Pritam Singh fell in error in not appreciating this ground urged before him on behalf of the petitioner and committed error in law in holding that no fresh notice was required to be issued to the appellant by the Court and there was no such provision. Controverting the aforesaid arguments of Mr. Singla, Mr. Puri, Advocate appearing for respondent No. 1 contended that as a matter of fact respondent No. 1 Ram Nath in whose favour the civil suit had been decreed, filed an execution application in which notice was issued to the judgment- debtors including the revisionist Surinder Kumar who put in appearance in the Executing Court, engaged a counsel and sought time to file objections, Mr. Puri contended that there was no disclosure about the filing of the appeal and about its dismissal for want of instructions. It was only when the Executing Court issued warrant of possession with police help that the judgment-debtor Surinder Kumar with a view to prolong and delay the delivery of possession, moved Misc. Application No. 5 of 22.1.1997. Mr. Puri contended that the application for restoration was moved beyond the prescribed period of limitation and the same was rightly dismissed by the learned Additional Sessions Judge, Sangrur,

In Malkiat Singh and another v. Joginder Singh and others 1998(1) PLR 271 : 1997(2) PLJ 535 : 1998(1) RCR 277 (SC) it was held that where the learned Counsel for the appellant had pleaded no instructions, the Court should have issued notice to the appellants who were not present on the date and such appellants could to be said to be at fault. The law laid down by the Hon''ble Apex Court in Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, was relied on. In the case of Tahil Ram (supra) the Hon''ble Supreme Court observed as under :-

"It is not disputed in the present case that on March 15, 1974 when Mr. Adhia, Advocate withdrew from the case, the petitioners were not present-in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adhia withdrew from the case, the interests of justice required, that a fresh notice for actual date of hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the parry in person was not at fault and as such should not be made [o suffer."

The facts of the case of Malkiat Singh and another (supra) were somewhat similar. A civil suit was filed in the Court of Sub Judge, 1st Class, Samrala claiming damages from the appellants Malkiat Singh and another to the tune of Rs. 1 lac. The claim in the suit was contested by Malkiat Singh and another and they filed the written statement and engaged a counsel to defend the suit. The trial Court framed a number of issues and examined two witnesses of the plaintiff who were also cross-examined. On a date of hearing which was fixedi.e. 18.11.1991 the counsel engaged by the appellants Malkiat Singh and another pleaded no instructions before the Court and the Court proceeded ex parte against Malkiat Singh and another. The suit was decreed ex parte against the appellants on 8.2.1992. The appellants enquired about the fate of the case and learnt on 6.6.1992 that their counsel had pleaded no instructions and they were proceeded ex parte and the suit was decreed ex parte. Thereafter, they engaged another counsel and on 10.6.1992 moved an application under Order9 Rule 13 of CPC for setting aside the ex parte decree including the ex parte order. The trial Court dismissed the application moved under Order 9 Rule 13 of CPC and the appeal was filed in the Court of District Judge which was also dismissed, Thereafter, a revision was taken in the High Court which was also dismissed in limine and therafter the appeal by Special Leave was filed in the Hon''ble Apex Court. In these facts and circumstances, the Hon''ble Apex Court applied the law laid down in the case of Tahil Ram (supra) and allowed the appeal, set aside the order of the trial Court dated 18.11.1991 and ex parte order dated 8.2.1992 and remanded the case to the trial Court for disposal according to law.

Now coming to the facts of the instant case the revisionist Surinder Kumar was not present in the Court of the Additional District Judge when the civil appeal was taken up for hearing on 5.12.1995 and on which date his counsel Mr. R.K, Jain pleaded no instructions. The revisionist/appellant had, thus, no knowledge about the fact that his counsel had reported no instructions and that he had no opportunity of proceeding with his appeal by engaging another counsel. Learned Additional District Judge, instead of issuing notice to the appellant calling upon him to proceed with the appeal in the event of his counsel reporting no instructions, proceeded to dismiss the same and strangely enough not for default of the appellant but for want of instructions. There is no such provision under which the learned Additional District Judge could dismiss the appeal for want of instructions. The appeal could be dismissed either on merit or in default of the appellant. The order dated 5.12.1995 was, thus, passed against the revisionist for none of his fault. Still further, when the revisionist Surinder Kumar moved the civil misc application for restoration of his appeal by setting aside the order dated 5.12.1995, the learned Additional District Judge did not properly consider his case and did not apply the law laid down by the Hon''ble Supreme Court in Tahil Ram''s case (supra). The case of Tahil Ram (supra) was cited before the learned Additional District Judge as would appear from para 4 of the impugned order in which the rival contentions have been noticed. The learned Additional District Judge referred the said case in these words :

"In support of his contention he has placed reliance on 1993(2) PLK 689 : 1993 PLJ 607 : 1993(3) RCR 668 (P&H) Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, , Tahil Ram Issardas Sadarangani and others v. Ram Chand Issardas Sadarangani and another."

While concluding his opinion, the learned Additional District Judge observed in para 8 of the impugned order as under :-

"As already stated, the sole point involved in the case is as to whether in this case when Sh. R.K. Jain, Advocate appeared for the appellant and had pleaded no instructions, was it the duty of the Court to issue notice to the appellant. Accordingly, learned Counsel for the respondent has rightly relied upon the ratio in which the authorities of learned Counsel for the appellant/applicant have been discussed in detail. Since no fresh notice was required to be issued to the appellant by the Court, so there is no provision for giving fresh notice to the party which had already been represented by the counsel, the appellant cannot plead that he was prevented from appearing in the Court due to the reason that he had already instructed his counsel Sh. R.K. Jain to appear on his behalf."

In my considered view, the learned Additional District Judge, Sangrur committed error in law in not applying the law laid down by the Hon''ble Supreme Court in Tahil Ram''s case (supra) and denying the opportunity of hearing to the revisionist in the civil appeal filed by him against the judgment and decree of the learned trial Court. It is settled principle of law that the Court shou Id make all the endeavours to decide the civil suit civil appeal, or for that matter, any judicial proceedings on merit and afford a reasonable opportu- nity of hearing to the parties. In the instant case, the learned Additional District Judge attached significance to the delay in filing the restoration application and while referring to the conduct of the petitioner in not moving the restoration application within the prescribed period of limitation observed in para 7 as under:

"It is the common case of the parties that Surinder Ku-mar-applicant in the appeal filed by him had engaged his counsel Sh. R.K. Jain, Advocate, who appeared on his behalf to attend the proceedings. It is also admitted by the appellant that in the month of November 1995 he went to Jawalpur in U.P. and remained there for 6-7 months. Admit-tedly he was not present in the Court on 5.12.1995 when the appeal was dismissed on the ground that his counsel Sh. R.K. Jain had pleaded no instructions to appear on behalf of the appellant. The present application for the re-admission of the appeal was filed on 9.9.1996 i.e. after the expiry of a period of more than 8 months after the appeal was dismissed. The point for consideration in the present application is as to whether the Court was bound to issue the notice to the appellant whose counsel had pleaded no instructions to appear on behalf of the appellant on 5.12.1995. In 1993(2) PLR 689 : 1993 PLJ 607 referred to above, it is held that when counsel withdraws from the case, then the interest of justice requires that fresh notice for actual date of hearing should have been sent to the defendant."

Once it is found that the order dated 5.12.1995 was passed by the learned Additional District Judge against the settled principle of law inasmuch as he did not think it appropriate to issue notice afresh to the appellant, consequent upon the pleading of no instructions by his counsel, the appellant/revisionist Surinder Kumar should not have been made to suffer forno fault of his and on the other hand, for the mistake of the court. It is equally settled proposition of law that no party should be allowed to suffer for the mistake. Even if it is assumed for a moment that the appellant/revisionist took away some time in taking a decision in moving the application for setting aside order dated 5.12.1995 obviously under the advice of his counsel and after taking part in the execution proceedings, the revisionist should not be penalised to the extent of denial of hearing on merit of the civil appeal filed by him against the decree passed by the trial Court. In order to balance the equities between the parties and to afford a reasonable opportunity of hearing of the civil appeal to the revisionist Surinder Kumar, I deem it appropriate that this revision should be allowed subject to payment of Rs. 2000/- as costs and with a further direction to the learned Appellate Court i.e. the Additional District Judge, Sangrur to decide the civil appeal within a period of six months from the date of communication of this order. The interest of justice would adequately be met and the respondent Ram Nath would adequately be compensated in terms of costs for the delay/laches in filing the application for restoration of the civil appeal. Resultantly, this revision is allowed and the impugned order i.e. the orders dated 10.4.1997 and 5.12.1995 passed by the Additional District Judge, Sangrur are set aside. Civil Appeal No. 106 of 3.10.1994 is directed to be restored to its number. The learned Additional District Judge, Sangrur shall proceed to hear and decide the civil appeal expeditiously but no later than six months from the date of communication of this order. Parties are directed to appear before the Court of learned Additional District Judge, Sangrur on 9.8.1999.

Petition allowed.