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Asgher HussaIn Vs. Vicarunnisa Begum and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1879 of 1957
Judge
Reported inAIR1961AP128
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13
AppellantAsgher Hussain
RespondentVicarunnisa Begum and anr.
Appellant AdvocateSyed Mohain, Adv.
Respondent AdvocateVasant Rao Mukhedkar, Adv. for ;Sadgur Pershad, Adv. and ;Ramanraj Saxena, Adv.
DispositionPetition allowed
Excerpt:
civil - ex-parte decree - order 9 rule 13 of code of civil procedure, 1908 - advocate present in one court - suit in another court case - case decreed ex- parte - not possible for advocate to be present in both courts at same time - sufficient cause to set aside ex- parte decree. - - the facts set out above clearly show that the defendant was present in court at the time when the suit was called on for hearing. ' lord thankevton clearly laid down in srinivas prasad singh v. 13) as follows :every litigant has the right to have his case heard and disposed of, hut that right must not be abused, even though the defendant, for reasons of his own, is not anxious to complain of the plaintiff's delay. but the court is not entitled to deprive the litigant of his right, except on clearly..........civil revision petition arises out of an application filed by the petitioner to set aside the ex parte decree passed in o.s. no. 107/1 of 1954-55 on the file of the third judge, city civil court, hyderabad. in the petition filed by the advocate on behalf of the petitioner, lie stated that as he was held up in the jagirdars debt settlement board, he came to court at 2 o' clock and that the suit was decreed ex parte. the petitioner herein filed an affidavit stating that as the advocate was arguing before the jagirdars debt settlement board, his advocate was not present when the suit was called on for hearing.it is admitted that the petitioner was present in court when the case was called. no counter was filed in the case. but still, the third judge, city civil court dismissed the.....
Judgment:
ORDER

Umamaheswaram, J.

1. This Civil Revision Petition arises out of an application filed by the petitioner to set aside the ex parte decree passed in O.S. No. 107/1 of 1954-55 on the file of the Third Judge, City Civil Court, Hyderabad. In the petition filed by the Advocate on behalf of the petitioner, lie stated that as he was held up in the Jagirdars Debt Settlement Board, he came to Court at 2 o' clock and that the suit was decreed ex parte. The petitioner herein filed an affidavit stating that as the advocate was arguing before the Jagirdars Debt Settlement Board, his Advocate was not present when the suit was called on for hearing.

It is admitted that the petitioner was present in Court when the case was called. No counter was filed in the case. But still, the Third Judge, City Civil Court dismissed the application. He held that the mere fact that the advocate was arguing in another Court was not a sufficient cause to set aside the ex parte decree and he dismissed the application. He also observed that in the affidavit, all the statements made in the petition were not repeated.

On appeal, the Chief Judge, City Civil Court confirmed the order and held that the appellant's affidavit

'has no legal significance because the facts set out in the petition have not been mentioned there-in',

and that

'the so-called affidavit shows that the applicant (defendant) verified on oath all the facts set out an the application for setting aside the ex parte decree.'

In the result, he held that the affidavit was 'nothing more than a waste paper and cannot have the legal effect of an affidavit.' As against this order, the petitioner has preferred the Civil Revision Petition to this Court.

2. The only question that arises for decision in the Civil Revision Petition is whether the absence of a lawyer by reason of his being engaged in another court is not a sufficient cause within the meaning of Order IX Rule 13 C.P.C. to set aside the ex parte decree. I have no doubt that if an Advocate is engaged in another Court and is not in a position to appear in a suit or in an appeal, it is a sufficient cause for setting aside an ex parte decree.

The facts set out above clearly show that the defendant was present in Court at the time when the suit was called on for hearing. The record of the Court, viz., the judgment, shows that the Advocate had come to Court and signed on the judgment as required by the Judge immediately after it was delivered. In the petition signed by the Advocate, he had given a valid excuse for his absence, viz., that he was arguing before the Jagirdars Debt Settlement Board.

It is not possible for the advocate to he present in both the courts 'at the same time. The duty of the Court is to administer justice in accordance with law. The court ought not to exercise a punitive jurisdiction by declaring the defendant ex parte 01 dismissing the suit for default in such circumstances. The proper course for the court is to pass over the suit or the appeal in order to enable the Advocate to finish his case in the other Court and appear before it.

3. The learned Advocate for the respondent invited my attention to a decision of the Lahore High Court in Chuni Lal v. Gandu Mal, AIR 1927 Lah 791 (1) wherein the learned Judge refused to set aside an order of dismissal of default even though the petitioner's counsel was engaged in another Court. A contrary view has been taken by the Hyderabad High Court in Bansilal v. Mukundas, AIR 1952 Hyd 155.

Though on the particular facts of the case, the learned Judges refused to restore the case dismissed for default, they rightly held that:

'Courts would ordinarily be inclined to restore the appeal unless there has been gross negligence on the part of the party because the Courts are there only for the advancement of justice and ordinarily would not be inclined to deprive a litigant of his right.'

Lord Thankevton clearly laid down in Srinivas Prasad Singh v. Keshava Prasad Singh, 63 Ind App 12 at p. 22 '(AIR 1936 PC 9 at p. 13) as follows :

'Every litigant has the right to have his case heard and disposed of, hut that right must not be abused, even though the defendant, for reasons of his own, is not anxious to complain of the plaintiff's delay. But the Court is not entitled to deprive the litigant of his right, except on clearly ascertained grounds, and to the exclusion of grounds which rest only on suspicion.'

I therefore respectfully dissent from the judgment of Dalip Singh J. in AIR 1927 Lah 791 (1).

4. The learned Advocate for the respondent contended that an affidavit ought to have been filed by the Advocate setting out the reasons for his absence and that inasmuch as he did not file an affidavit the ex parte decree ought not to be set aside. I see no force in this contention. An advocate is1, in a sense a responsible officer of the Court who is interested in the administration of justice and if he makes a statement that he was not in a position to appear for particular reasons, the statement ought, to he generally accepted and not lightly brushed aside. In the present case, the Advocate had signed the petition. It was absolutely unnecessary for him to file an affidavit setting out those facts. It is surprising that even though a counter had not been filed by the plaintiff denying those facts, both the courts below refused to set aside the ex parte decree.

5. It is unfortunate that both the Courts refused to set aside the ex parte decree and the suit has to be tried afresh after a lapse of five years. If only the Third Judge, City Civil Court had restored the suit, it would have been disposed of on the merits long ago.

6. The orders of the Courts below are setaside and the suit is directed to be disposed of asexpeditiously as possible. The costs will abide theresult.


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