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Smt. Sita Bai Gangrade Vs. Smt. Vidhyawati Gangrade - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Revn. No. 274 of 1971
Judge
Reported inAIR1972MP198; 1972MPLJ510
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 3, Rule 4 - Order 9, Rule 13
AppellantSmt. Sita Bai Gangrade
RespondentSmt. Vidhyawati Gangrade
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateR.P. Verma, Adv.
DispositionRevision dismissed
Excerpt:
- - in our opinion, the mere fact that the counsel for the litigant party was busy in some other court could not be a good and sufficient reason for his default of apperance in the court when his case was called......order came to be passed under the following circumstances :the non-applicant vidyawati bai filed a civil suit, civil suit no. 1-a of 1967, inter alia, for a declaration that she was the owner of the suit house, situate in wright town. jabalpur. after the plaintiffs evidence had been recorded, the defendant on 29-3-1968 applied for an opportunity to adduce evidence. the application was allowed subject to the payment of rs. 50.00 as costs, which was made a condition precedent. after a few adjournment when the case came up for hearing on 27-6-1968, the defendant was absent and no witnesses were present on her behalf. the court, therefore, ordered that the case of the defendant be closed and fixed the case for arguments. after hearing the arguments, the learned additional district judge, on.....
Judgment:

Naik, J.

1. This is a civil revision arising out of an order passed on 2-9-1970 in Miscellaneous Judicial Case No. 3 of 1970.

2. The aforesaid order came to be passed under the following circumstances :

The non-applicant Vidyawati Bai filed a Civil suit, Civil Suit No. 1-A of 1967, inter alia, for a declaration that she was the owner of the suit house, situate in Wright Town. Jabalpur. After the plaintiffs evidence had been recorded, the defendant on 29-3-1968 applied for an opportunity to adduce evidence. The application was allowed subject to the payment of Rs. 50.00 as costs, which was made a condition precedent. After a few adjournment when the case came up for hearing on 27-6-1968, the defendant was absent and no witnesses were present on her behalf. The Court, therefore, ordered that the case of the defendant be closed and fixed the case for arguments. After hearing the arguments, the learned Additional District Judge, on 20-7-1968, delivered the judgment decreeing the suit of the plaintiff non-applicant.

On 19-8-1968, an application was filed by the applicant-defendant Smt. Sitabai purporting to be under Rule 13 of Order IX of the Code of Civil Procedure. This was registered as Miscellaneous Judicial Case No. 18 of 1968. The application was dismissed for default on 27-9-1968 as the applicant was absent-On 6-1-1969, the applicant-defendant filed another application (Miscellaneous Judicial Case No. 1 of 1969) purporting to be under Section 151 of the Code of Civil Procedure praying that the dismissal of the application filed under Rule 13 of Order IX of the Code of Civil Procedure in Miscellaneous Judicial Case No.18 of 1968 be set aside. This application also came to be dismissed on 3-1-1970 for want of prosecution as both the parties were absent on that day.

On 5-1-1970, the applicant-defendant filed still another application Miscellaneous Judicial Case No. 3 of 1969 purport-ins to be under Section 151 of the Code of Civil Procedure praying that the dismissal of the application registered as Miscellaneous Judicial Case No. 1 of 1969 be set aside and the case restored to file and disposed of on merits in accordance with law. This application was again dismissed on 2-9-1970 with the observation that if the counsel engaged by the applicant-defendant was busy in another Court, there was no excuse for him not to have made some arrangement for his appearance in the Court of the learned Judge when the case was called for hearing. In the opinion of the Court, not to make such arrangement was callous discourtesy to the Court which could not be overlooked. It is this order which is sought to be challenged in this revision.

3. In our opinion, there is no merit in this revision application. In the first place, we agree with the learned Additional District Judge that a counsel engaged by a litigant has no right to lust absent himself from a court when the case of his client comes up for hearing. It is his bounden duty to attend to that case in the Court or to make such other arrangement as he thinks proper for the proper representation of his client in the Court concerned. In our opinion, for a counsel to absent himself from a Court without informing it either himself or through any other proper person why it was not possible for him to attend to the case in that Court was an act of discourtesy to that Court and was inexcusable. The counsel owes a duty not only to his client but also to the Court. Ordinarily, if a counsel expects that he would be busy elsewhere, he should make proper arrangement for the representation of his client in the Court so that his (the client's) case does not go by default. But, if for some unavoidable reason this were not possible, the least that he was expected to do was to inform the Court the reason for his inability to attend to his case in that Court and to take leave from the Court for his unavoidable absence. In our opinion, the mere fact that the counsel for the litigant party was busy in some other Court could not be a good and sufficient reason for his default of apperance in the Court when his case was called. Such absence was not only unfair to the client whose interest the counsel had undertaken to protect but was also unfair and discourteous to the Court. In our opinion, such absence should be severely discountenanced.

4. But that apart, in this particular case, time had been given to the defendant-applicant to produce her evidence in Civil Suit No. 1-A of 1967. She neither produced her evidence nor was she present in Court either herself or through her counsel, with the result that the Court proceeded to decide the suit on the material before it and pass a decree in favour of the non-applicant plaintiff decreeing her suit. Such a decree could not be set aside by an application under Rule 13 of Order IX of the Code of Civil Procedure. The order had not been passed under Order IX of the Code and, therefore, there was no occasion for the filing of an application under Rule 13 of Order IX of the Code of Civil Procedure. After that application, which was in law untenable, had been dismissed in default, an application purporting to be under Section 151 of the Code of Civil Procedure was filed to restore it. But this application was also dismissed in default and a second application purporting to be under Section 151 of the Code of Civil Procedure was made. This last application was dismissed by the learned Additional District Judge for the reasons given by him. A bare recital of the aforesaid facts amply shows that laches in the conduct of the case by the applicant-defendant were writ large on the proceedings and, under the circumstances of the case, she was not entitled to any discretionary indulgence in her favour under the provisions of the Code of Civil Procedure.

5. The application for revision Is, therefore. dismissed. Counsel's fee Rs. 50/-, if certified.


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