CHET RAM GUPTA Vs. MOTIAN DEVI LAMBA

JUDGEMENT

(1.) Sh. Chet Ram Gupta, plaintiff herein, filed a suit for specific performance of the agreement to sell against Smt. Motian Devi Lamba and Ors. The suit was listed on 22nd March, 1993 according to the plaintiff, before Dalveer Bhandari, ). for arguments on the applications and for framing of issues. On 22nd March, 1993 applications of the plaintiff bearing IA. No. 787/89 (Correct No. 7879/89) and that of the defendant bearing IA. No. 6021/90 were heard in part, and thereafter the case was adjourned to 24th March, 1993 for remaining arguments. On 24th March, 1993 the case was renotified for 3rd May, 1993. On 3rd May, 1993 the Hon'ble Judge was on leave and the case was adjourned to 5th May, 1993 for arguments on IA. Nos. 787/89 (Correct No. 7879/89) and 6021/90. Arguments were not heard hence the case was adjourned for consideration of those applications on 5th July, 1993. On 5th July, 1993, at the request of Counsel for the defendants, case was adjourned to 20th September, 1993. On that date Mohd. Shamim,J. observed that since it was part heard matter before Dalveer Bhandari, J., therefore, it should be placed before the same Bench. Accordingly, the matter was listed before Dalveer Bhandari, J. for 24th September, 1993. However, Dalveer Bhandari, J. discharged the matter from his Board and ordered it to be listed before Regular Bench for 28th September, 1993, neither the plaintiff nor his Counsel put in appearance, whereas Counsel for the defendants were present. After calling the case twice the suit was dismissed in default.

(2.) It is against this order of dismissal dated 28th September, 1993 that the present application has been filed inter alia on the ground that Dalveer Bhandari, J. was sitting in Division Bench alongwith Hon'ble the Chief Justice, therefore, the matter was not taken up on 24th September, 1993. The case was not taken up by Dalveer Bhandari, J. till about 4.10 p.m. nor the date was given in the presence of the Counsel. Hence, the Counsel for the applicant could not note the next date fixed by Dalveer Bhandari, J. and hence could not put in appearance on 28th September, 1993 before Mohd. Shamim,J. It is further alleged that the Court Master told him to enquiry about the next date later on. 25th and 26th September, 1993 happened to be holiday on account of Saturday and Sunday respectively. On Monday the Counsel could not make the enquiry personally, however, instructed his Clerk to find out the date from the Registry. The Counsel for the plaintiff on account of some personal work had to leave the Court on 28th September, 1993 at 11.30 a.m. Therefore, when Mohd. Sharnim, J. called this case, none was present on behalf of the plaintiff. The plaintiff was also not aware of the next date hence healsocouldnotcometoCourton28th September, 1993. That the non appearance of the Counsel for the plaintfff as well as of the plaintiff was neither intentional nor deliberate, but due to circumstances beyond their control. It was all on account of the confusion created by transfer of case from one Court to other and the date of 368 28th September, 1993 having not been fixed in the presence of the Counsel for the plaintiff. As soon as the Counsel came to know about the dismissal of the suit, he immediately approached the Hon'ble Judge in Chamber and apprised him the exact position. The date of 28th September, 1993, as per record was fixed in the presence of Mr. Mohinder Rana. In fact he was not the Counsel for the plaintiff. Mr. Mohinder Rana has also filed his affidavit stating there that the dated of 28th September, 1993 was not fixed in his presence. Cause list of 28th September, 1993 could not be checked by the Counsel for the plaintiff because some pages of the cause list were missing. Plaintiff was not required to attend the Court. It was for the Counsel to find out date as to when the case was to be listed before the Regular Bench, therefore, in these circumstances he could not appear. Even otherwise the part heard matter before Dalveer Bhandari, J. were the applications and those applications had been listed for arguments on 28th September, 1993, therefore, the suit could not have been dismissed. It was only the applications which at best could have been dismissed.

(3.) This application has been contested by the defendants on the grounds that the date of 28th September, 1993 was fixed by Dalveer Bhandari, J. in the presence of the Counsel for the parties. Plaintiff cannot be allowed to take advantage of his negligence in not appearing on 28th September, 1993. The alleged enquiry was made by the Counsel for plaintiff from the Reader of the Court about the next date has been denied. If the plaintiff and his Counsel were not vigilent in pursuing their case, they cannot hold someone else liable for the same. Moreover, the Reader never told the Counsel, as stated in this application that the date would be informed later on. All averments made in this application have also been denied. It is denied that the case was listed only for disposal of the applications. It has also been denied that Mr. Bhargava had any personal work and left the Court at 11.30 a.m. on 28th September, 1993.