NAGAR NIGAM ALLAHABAD Vs. RABIYA BEGUM

JUDGEMENT

(1.) TARUN Agarwala, J. The plaintiff respondent Nos. 1 and 2 instituted a suit No. 340 of 1996 against the petitioner and respondent No. 3 for a declaration that the plaintiffs be declared the owner of the house in question alongwith defendant-respondent No. 3. The defendant No. 1 is the present petitioner and is the Nagar Nigam of Allahabad. The record indicates that the summons were duly served upon the petitioner on 24th June, 1996 and since the petitioner did not appear, the trial Court, by an order dated 12-12-1996, ordered the suit to proceed ex parte under Order IX, Rule 13 (1) (a) of the C. P. C.

(2.) IT is alleged by the petitioner that Sri Jata Shanker Pandey, the Advocate of the petitioner before the District Court appeared before the trial Court in relation to some other matters of the Nagar Nigam. The Court asked the Advocate as to why he was not appearing in the present case. IT is further alleged that the Advocate stated orally to the Court that he had no instructions in the matter. IT is alleged that the Court directed the said Advocate to seek necessary instructions and, on this basis, Sri Jata Shanker Pandey, Advocate moved an application dated 3-2-1999 seeking time to file the written statement. IT is also alleged that a formal vakalatnama was filed subsequently and further time to file the written statement was again sought for on 21-4-1999. On 21-4-1999, the petitioner also filed an application alongwith an affidavit sworn by Sri Krishna Kant Patel, an employee of the Nagar Nigam for the recall of the order dated 12-12-1996. The record discloses that on account of the non-appearance of the petitioner, the recall application was dismissed in default on 5-7-1999 and eventually, the suit was decreed ex parte against the petitioner-defendant.

(3.) THE sole ground for recalling the ex parte decree is that the petitioner's Advocate was doing pairvi in the case and he failed to appear on account of his engagement in other cases in other Courts. It was also averred that the pairokar was attached to another Advocate for other cases of the Nigam and therefore, he was also unaware of the proceedings of the case.