GANGAJALI Vs. MAHABAL

JUDGEMENT

(1.) Heard learned Counsel for the petitioner. Undisputed facts are that plaintiff-respondent filed suit for cancellation of the sale-deed and for permanent injunction against defendant-petitioner, who contested the suit proceedings by filing written statement. However, subsequently she absented herself and the suit was decreed ex parte vide judgment and order dated 6.12.2006. An application dated 7.8.2008 was moved under Order IX, Rule 13, C.P.C., to recall the ex parte order on the ground that notices and summons of the suit were never served upon her and she has no knowledge of the proceedings and it is only when she heard rumour in the village she made enquiry and came to know of the ex parte decree. An application under section 5 of the Limitation Act duly supported by affidavit seeking condonation of delay was also moved. Trial Court finding that petitioner had appeared in the proceedings and filed her written statement and she contested the proceedings and on number of occasions, the case was directed to proceed ex parte against her but lateron orders were recalled on her application, rejected the application under Order IX, Rule 13, C.P.C. filed on the ground that notice or summons were never served upon her. The petitioner went up in appeal setting up a entirely new case that Counsel, who drafted the application under Order IX, Rule 13, C.P.C., never informed her about the grounds being taken therein and for the reasons best known to the Counsel the application was moved by him on totally frivolous grounds. The Lower Appellate Court disbelieving the averments dismissed the appeal. Aggrieved, the petitioner has approached this Court.

(2.) It has been urged by the learned Counsel for the petitioner that litigant should not be allowed to suffer on account of mistake or negligence committed by her lawyer. Reliance in support of the contention has been placed in the case of Narmada Nursery K.G. and Junior School, M.P. v. Regional Provident Fund Commissioner and another, 2000 38 ALLLR 729 (SC) .

(3.) I have considered the argument advanced by the learned Counsel for the petitioner and perused the record. In the case of Narmada Nursery K.G. and Junior School facts were that Counsel appearing for the petitioner could not appear when the case was called out and in that set of facts and circumstances, the Hon'ble Apex Court has held that the case of litigant should not be adversely affected because of the negligence of lawyers. The facts of this case are entirely different. It is not a case of negligence by lawyer but the pleadings set up by the applicant in the application under Order IX, Rule 13, C.P.C. which was duly supported by affidavit sworn by her and the story set up by the petitioner in the appeal that lawyer mentioned wrong and incorrect grounds in the application without disclosing the same to her is not liable to be believed.