RAMJI KALAR Vs. FAKIR MOHAN

JUDGEMENT

(1.) This petition has been preferred against the order dtd. 31/3/2018 passed by the Additional District Judge, Sarangarh, District Raigarh in Misc. Civil Appeal No.2/2017, whereby, the appeal preferred against the order dtd. 4/3/2017, dismissing the application filed by defendant No.1 under Order 9 Rule 13 read with Sec. 151 of CPC for setting aside the ex-parte decree dtd. 13/3/2013 (in Civil Suit No.44A/11), passed by the Civil Judge, Class-I, Sarangarh District Raigarh (CG) in Misc. Civil Case No.2/2013, has been dismissed and thereby, the order dtd. 4/3/2017 has been affirmed

(2.) Learned counsel for the petitioner would submit that, the respondent/plaintiff had instituted Civil Suit No.44A/2011 for declaration of tile and vacant possession against the petitioner/defendant. He submits that on the date of hearing of the suit i.e. 24/9/2012, Counsel for the petitioner/defendant pleaded no instructions before the concerned Court and therefore, the Court proceeded exparte and passed the judgment on 13/3/2013. The said exparte proceedings have been challanged by way of appeal, which was dismissed by the impugned order dtd. 31/3/2018. He submits that both the Courts below have ignored the fact that the petitioner/defendant had duly engaged a counsel for protecting his rights and was also participating in the proceedings but on the date of the hearing, the Counsel pleaded no instructions in the matter since he could not contact the defendant. He further submits that the parties cannot be penalized for the fault of the Advocate. Learned counsel places reliance on the judgment rendered by this Court in the matter of Laxmi Prasad Vs. Gulam Ali and others, 2008 (1) C.G.L.J. 393. In the said matter, this Court relied on the judgment passed by Hon'ble the Supreme Court rendered in the matter of Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, AIR 1993 SC 1182, wherein, the procedure to be followed when a counsel pleads no instructions, has been laid down. In the instant case, such procedure has not been followed, therefore, the impugned order passed by the Court below is not sustainable. He prays to allow the petition and quash the impugned order.

(3.) On the other hand, learned counsel for the plaintiffs/respondents supports the impugned order and submits that it is well-merited and does not call for any interference.