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Kulwant Kaur and anr. Vs. Balbir Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectMotor Vehicles
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 649 of 1981
Judge
Reported inAIR1983P& H335
ActsCode of Civil Procedure (CPC), 1908 - Order 9, Rule 8 - Order 17, Rule 2 - Order 33, Rule 5 - Order 43, Rule 1
AppellantKulwant Kaur and anr.
RespondentBalbir Singh and ors.
Cases ReferredRafiq v. Munshi Lal
Excerpt:
.....is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 2 of the code relates to the procedure if the parties fail to appear to the date fixed for hearing. it reads as follows :where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by o. therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the high court to inquire as to what is happening in the high court..........43, r. 1(na).6. after taking into consideration all the facts and circumstances of this case. i accept the revision petition, set aside the order of the learned additional district judge and direct him to decide the application after hearing the parties. costs in the revision petition shall be the costs in the cause. the parties are directed to appear before him on 15th february, 1982.7. petition allowed.
Judgment:
ORDER

1. This revision petition has been filed against the order of Mr. V. K. Jain, Motor Accidents Claims Tribunal, Hissar, dated 13-2-1981, dismissing the application of the petitioners to sue as indigent persons, in default.

2. Briefly, the facts are that Gurdip Singh was killed in a motor accident. Smt. Kulwant Kaur, widow, and Amarjit Kaur, minor, daughter of the deceased, filed a petition to sue as an indigent person to recover Rs. 1,20,000/- as damages on account of the death of Gurdip Singh. The petitioners had led their evidence in whole and the respondents in part on the earlier dates. The case was adjourned to 13-2-1981 for remaining evidence of the respondents and arguments. Mr. S. M. Anand, counsel for respondents Nos. 1 and 2 made a statement at the Bar that they did not want to lead further evidence. Mr. Rajesh Kumar, Advocate, then stated that Mr, Chetal Advocate of the petitioners had instructed Mr. Jaimal Singh Advocate to appear to his behalf and make a request for adjournment. He further stated that Mr. Jaimal Singh was not present and clerk of Mr. Chetal had asked to appear in the case and seek adjournment. The learned Additional District Judge declined to do so and dismissed the application in default on the ground that he was not instructed by a duly authorised person on behalf of the petitioners. They have come up in revision against the order of the Additional District Judge to this Court.

3. The learned counsel for the petitioners has contended that the learned Additional District Judge in view of the fact that the parties had concluded the evidence, could not dismiss the petition for want of instructions under O. 17, R. 2 of the Code of Civil Procedure read with O. 9 of the Code. In support of his contention he makes reference to Rafiq v. Munshi Lal, AIR 1981 SC. 1400.

4. I have given consideration to the argument and find force in it. It is not disputed that the petitioners had concluded their evidence in full and the respondents in part. The case was fixed for 13-2-1981 for remaining evidence of the respondents and arguments. The learned counsel for the respondents, however, made a statement that the did not want to lead further evidence. The case, therefore, matured for arguments. Order 17, R. 2 of the Code relates to the procedure if the parties fail to appear to the date fixed for hearing. It reads as follows :--

'Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by O. IX or make such other order as it thinks fit.'

Explanation--Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the case as if such party were present.'

The Court it appears, dismissed the petition under O. 9, R. 8 of the Code without reading the Explanation which inter alia provides that where the evidence of a party has concluded and that party does not appear on a subsequent day, the Court may proceed with the case as if the party was present. In view of the explanation, if the Additional District Judge did not want to adjourn the case the proper thing for him was to decide it on merits. The petitioner should not have been punished for the lapse of the lawyer, when the law permitted him to decide the petition. I get some support from the abovesaid observation from Rafiq's case (AIR 1981 SC. 1400)(supra) wherein it was observed (at p. 1401) :--

'..........under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a village or may belong to a rural area and may have no knowledge of the Courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job................. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A. K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is property that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative.' The above observations were made in an appeal. However, after the evidence has been led by the parties in the trial Court, the litigant has to do nothing thereafter and it is the sole responsibility of the lawyer to argue the case. Thus the above observations are fully applicable to the case pending in the trial Court, when it reaches the stage of arguments.

5. Faced with that difficulty, the learned counsel for the respondents sought to urge that the impugned order is appealable under O. 43, R. 1(na). I regret my inability to accept the contention. O. 43, R. 1(na) prescribes that an order under R. 5 of O. 33 rejecting an application for permission to sue as an indigent person, is appealable. In the present case the application has not been rejected on any of the grounds mentioned in R. 5. On the other hand, it has been dismissed in default. Therefore, the order is not appealable under O. 43, R. 1(na).

6. After taking into consideration all the facts and circumstances of this case. I accept the revision petition, set aside the order of the learned Additional District Judge and direct him to decide the application after hearing the parties. Costs in the revision petition shall be the costs in the cause. The parties are directed to appear before him on 15th February, 1982.

7. Petition allowed.


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