BAKEER BHAI Vs. YASHWANT GUPTA

JUDGEMENT

(1.) C.M. No.59197/2018 (for exemption)

(2.) The brief facts of the case are that the respondent (plaintiff) instituted a civil suit for recovery of Rs.19,11,340/- against the appellant. The appellant received summons of the suit from the said court in the month of September/October, 2009 and appointed one Sh. Syed Ahmed Saud, Advocate to represent him. The appellant is a permanent resident of Chennai and was unable to appear before the trial court on each and every date of hearing. The said counsel assured him that the proceedings are of civil nature and parties are not required to appear on each and every date of hearing and he would take care of the matter without any fail. The appellant had paid to his counsel his professional charges and executed a vakalatnama. The appellant remained in constant touch with the said counsel and received information from him regarding the case. His counsel used to apprise the appellant about the next date of hearing. On instructions of his counsel, the appellant had also appeared before the trial court on 17.08.2010. The appellant continued to remain in touch with his counsel who assured him that the case was going well and whenever his presence would be required he would call him. On 07.07.2018, the appellant received a letter/notice from the counsel for the plaintiff to the effect that the suit has been decreed and asked him to make the payment. On receiving the said letter, the appellant immediately contacted his said counsel and on making inquiries his counsel failed to give satisfactory answers. The appellant engaged another counsel and it was found that suit of the plaintiff was decreed by a judgment and decree dated 05.06.2018. The appellant filed an application under Order IX Rule 13 CPC for setting aside the ex-parte judgment and decree on 30.07.2018, which was dismissed by the impugned order.

(3.) By impugned order, the learned ADJ observed that "there is a serious allegation against the counsel who was representing defendant. If the application for setting aside is accepted, it would mean accepting the allegations against the counsel without hearing him. There is no procedure to enter into trail against lawyer in the present case before or after setting aside the ex-parte judgment. As per the allegations, it is the act of counsel due to which defendant has suffered decree. The relationship between the defendant and that of his counsel is of faith and trust and therefore, counsel is under pious obligation to represent his client to the best of his ability and if the counsel was acted against this obligation then defendant has of his remedy to recover the loss from him personally. Irrespective of the merit of the case, if one suffer decree purely on account of negligence of his counsel, then defendant has cause of action against said counsel to seek damages from his counsel by filing independent suit. Only in the said suit negligence or otherwise of the counsel would come to the fore and if counsel would satisfy the court that he had done his job with all sincerity and to the best of ability, then defendant would bear the loss. But by simply blaming previous counsel he cannot be allowed to take advantage and thereby jeopardising the accrued entitlement of the plaintiff. Therefore, this court is of the opinion that there is no ground for setting aside the ex-parte judgment and defendant is at liberty to take action in the form of recovery of amount which he has lost due to negligent act of counsel who had undertaken to defend the defendant to the best of his ability. Therefore, the application under Order 9 Rule 13 CPC for setting aside the judgment and decree is hereby dismissed. All other application stands disposed off accordingly.