VIJAY KUMAR NATHAN Vs. TEK CHAND JAIN

JUDGEMENT

(1.) We have seen the record of suit No. 203/81 IA No. 6684/86 was filed through Shri P. K. Bajaj, Advocate. There is an endorse- ment on the opening sheet that Senior Advocate was not available and the petition not to be listed on 21.10 1986. ltfurtther states, "Not to belisted till his availability and he will inform the date". Case was listed on 1st December, 1986 and there was no appearance and it was adjourned to 11th December, 1986 and the applications were dismissed in default on account of non-appearance. Learned counsel relies on Rafiq and another v. Munshilal and another, and Collector, Land Acquisition, Anantnaq and another v. Mst. Katiji and others, to contend that a litigant should not suffer for an inaction, deliberate omission, or misdemeanour of his counsel. Admit.

(2.) . Mr. Y. K. Jain states that the appeal be decided on the existing record. Heard. The appeal is directed against an order dated 7th December, 1987 of the learned Single Judge dismissing IAs 1585 and 1586 of 1987. These two applications were for restoration of IAs 6684 and 6682 of 1986. We have summoned the original record. IA No, 6682/8 was an application on behalf of defendant No, 2 in the suit, under Order 9 Rule 13 of code of Civil Procedure for setting aside the exparte Judgment and decree dated 23rd September, 1986. IA No. 6684/86 was an application on behalf of defendant No. I under Order 9 Rule 13 read with section 151 of Code of Civil procedure for setting aside exparte judgment and decree dated 23rd September, 1986. In the urgent memo attached with these two applications, a request is made initially for listing the matter for 21st October, 1986. Later on, the respective counsel in each case made another endorsement dated 20th October, 1986 staling that senior Advocate was not available and the petition should not be listed on 21st October, 1986. Another request was made that the applictions should not belisted till availability of the senoir counsel and that the counsel would inform the date. The registry listed the two applications before the learned Single Judge on 1st December, 1986 when none was present. Learned Single Judge directed that the applications be re-notified on 11th December, 1986 when these were dismissed in default.

(3.) . After the appellant came to know of the order dated 11th December, 1986, the applications under Section 151 of the Code of Civil procedure were filed for restoration of lAs 6684/86 and 6682/86.