PUNDRIKLAL M BAPALAL Vs. GUJARAT ELECTRICITY BOARD

JUDGEMENT

(1.) This is a revision application by the original defendant of the Civil Suit No. 1 of 1972 filed against him by the Gujarat Electricity Board for realising Rs. 2034.36 against him. On 16 -1 -75. the learned Advocate for the appellant had filed a sick note. He had filed sick notes even on earlier dates of hearing. On 16 -1 -75, perhaps being exasperated, the learned trial Judge refused to honour the sick note submitted by the petitioner's Advocate and proceeded with the matter. The evidence was re - corded and ultimately on the same day, the judgment was pronounced granting a decree in favour of the opponent - Gujarat Electricity Board. Thereafter, the original defendant filed the Civil Misc. Application No. 52 of 1975 under Order 9, Rule 13 of the C.P.C. for setting aside that ex -parte decree, but the learned Judge by his order dated 31 -12 -77 rejected that application. The Regular Civil Appeal No. 31 of 1978 against that order refusing to set aside that ex -parte decree also came to be lost by this petitioner before the learned appellate Judge there. This has given rise to the present revision application.

(2.) The short question that falls for my consideration is whether the court had jurisdiction, to proceed with the matter ex -parte when the defendant's accredited agent and representative, namely, the advocate has filed a sick note. It is a time -honoured practice to adjourn the matter when a lawyer is not present due to illness. A lawyer is not only a party's agent, but is also an officer of the Court. It is no doubt true that this privilege extended to the fraternity is at times abused, but on that count this time -honoured practice cannot be given a go -bye. I find that the courts are not helpless in such a situation if they find that an Advocate consistently goes on giving sick notes. In that case, the court can certainly direct the advocate or the advocate presenting the sick note to him that the advocate should inform his party to remain present before the court on some specified date with the new arrangement made and if despite this opportunity having been extended the party chooses not to remain present and chooses not to make any other arrangement, the Court will be justified in proceeding exparte. Nothing of the sort having been done in this matter, it is to be held that there was enough reason for the trial court to set aside the ex -parte decree. That having been not done, it can be said that the learned trial Judge had failed to exercise the jurisdiction vested in him by law. I, therefore, set aside the order of both the courts below, grant the application for setting aside the ex -parte decree, with the result that the suit shall stand revived on the file of the learned trial Judge concerned, who will expeditiously deal with this old suit revived on his file. Rule is accordingly made absolute with no order as to costs. (DBD)