RAM SARAN Vs. TOWN AREA COMMITTEE

JUDGEMENT

(1.) This first appeal from order is directed against the order of the court below by which the appellants application for setting aside the dismissal of the appeal in default has been rejected. The plaintiff appellant had filed a suit for injunction against the respondent restraining it from realising certain amount by way of tax, the validity of which was questioned on some legal grounds. The suit was dismissed by the trial court and in appeal the plaintiff was granted temporary injunction on condition that he should deposit Rs. 1,500 past amount of tax and should furnish the security of Rs. 5,000 for future tax. The appeal was fixed for hearing on 26-4-1975, but on that date the plaintiffs counsel made an application for adjournment which was allowed and 19-5-75, was fixed for hearing of the appeal. On this date, the appeal was called out in the pre-launch period but one Bishan Kumar appeared and stated that he was not ready with the appeal which is to be argued by his senior. The court below adjourned the hearing to the post lunch period specifically mentioning that it would be taken up after lunch. In tire after lunch period, several times the appeal was called out and on each occasion a Pairokar appeared and requested that he was going to call his counsel. On the last occasion, the appeal was called cut at 3.15 p.m. but at that time even the Poirokar did net appear. The counsel also remained absent and, therefore, the appeal was dismissed. An application for setting aside the order of dismissal of the appeal for default was moved on 31st May, 79 and this application has been dismissed by the court below by the impugned order dated 30-8-79. In its order, the court has observed that Bishan Kumar who had appeared in the pre-lunch period was an advocate and also happened to be the son of the appellant. On the previous date also, adjournment was allowed due to some personal difficulty of the Counsel. The court has further observed that: the appellant had been negligent throughout in the conduct of the case and that he perhaps wanted to delay it on one pretext or the other. On these grounds, the court below did not find any sufficient ground .or restoring the appeal and, consequently, the application has been rejected.

(2.) I Have heard counsel for the parties and I have alto been taken through the record. It appears that the appeal was not an old one and that on four occasions in all adjournment of the appeal was sought twice by the appellants counsel on his personal ground and twice, by the respondents counsel on his personal ground. 19th May, 79 was 6th date on which hearing of the appeal was fixed. The appellant could hot alto fie said to be taking undue advantage of any order of the court, because the temporary injunction was granted to him only on condition that Rs. 5000 be deposited in cash and adequate security to the extent of Rs. 5,000 could be furnished. From these faces, therefore, it cannot be said that the appellant, was trying to take a undue advantage or trying to delay the proceedings in appeal.

(3.) Sri Agarwal appearing for the appellant has not justified the action of the counsel in the court below and I think rightly so. The only submitted that since there was no fault on the part of the plaintiff and he had done all to see that the appeal was properly looked after by sending a Pairokar to the court and appointing a lawyer to argue his case, In these circumstances it is argued, that he could not be held to be negligent in any manner. The matter is not so simple as it is made out to be. I cannot let the attitude of the counsel go unnoticed. Instances of this type are becoming common and it is high time that this court should take notice of this not too infrequent lapse on the part of the counsel. What the court is supposed to do in such circumstances ? Is the court helpless if the counsel for a party refuses to appear in the case whom it is being repeatedly called? Can the court not dismiss it ? and when the court dismissed the appeal for default in such circumstances, does it become necessary 'or the court to restore the.some merely because the appellant himself cannot be said to be negligent and it is found, it was. his counsel who was not performing his duty as an advocate by failing to appear in Court ? After all what should the court do