RAM DHANI Vs. PURSHOTTAM LAL SRIVASTAVA

JUDGEMENT

(1.) THE applicant Ram Dhani Lal instituted a suit in the Court of Judge Small Causes for the ejectment of the opposite parties and also for damages. THE suit was decreed exparte on 14th September, 1975. THE decree was thereafter put in execution and possession was delivered to the applicant on 30th September, 1975. On the same date an application was made by the opposite parties for the setting aside of the exparte decree on the ground that they had not been served with the summons of the suit and had no knowledge either of the suit or of the decree prior to 30th September, 1975, namely the date on which the decree was executed. This application was put up for orders on 1st October, 1975, before the Judge Small Cause Court. On that date an order was passed directing notice to be issued to the applicant. It may be mentioned at this place that the applicant had engaged two counsels in the trial Court namely Sri Jagdish Narain Shukla and Sri Sushil Kumar Srivastava. In pursuance of the order dated 1st October, 1975, directing notice to be issued, three notices were simultaneously issued, one to the applicant personally and two to his two counsels referred to above. THE application was to be taken up on 20th October, 1975. THE notice which was issued to the applicant could not be served personally on him. THE process-server made a report that the applicant was not found and was reported to be out of station and that a copy of the notice had been affixed on the residential house of the applicant the door of which was open. It appears that Sri Jagdish Narain Shukla was the senior counsel for the applicant whereas Sri Sushil Kumar Srivastava was his junior. THE notices which were meant for service on these two counsels were accepted by Sri Jagdish Narain Shukla. On both these notices he made an endorsement that he received the notice at 9.30 A.M. on 20th October, 1975 and that it may be sent to the client. When the case was taken up on 20th October, 1975, the application for setting aside the exprate decree was ordered to be put up on 22nd October, 1975. On that date Sri Jagdish Narain Shukla made an application with the prayer that the summons may be issued to the plaintiff-applicant. In this application after accepting that he had received the summons Sri Jagdish Narain Shukla stated that the poceedings had ended and he was not in the know of the whereabouts of his client.

(2.) THE order sheet of 20th October, 1975, mentions that the counsel for the plaintiff-applicant is informed. Obviously this order was passed in the presence of the counsel for the applicant. On that date it was not stated by the counsel that he was not aware of the whereabouts of his client. Even though in the application dated 22nd October, 1975, a prayer was made that the summons may be issued to the opposite party, the Court was apparently not inclined to accept this prayer and took the service of notice on the counsel as sufficient. THE Judge thereafter proceeded to decide the application and allowed it on the finding that he was satisfied that the defendants had not been served with the summons of the suit and the fact stated by them in the application for setting aside the exparte decree was correct. Against that order a revision was filed under Section 25 of the Provincial Small Cause Court Act to the District Judge which was dismissed by the Vth Additional District & Sessions Judge on 17th November, 1975. He agreed with the finding of the trial Court that the defendants had not been served with the summons of the suit. Aggrieved by these orders, the plaintiff has preferred the present revision.

(3.) IN my opinion, the aforesaid case is not an authority direct in point and only lays down a general proposition of law. The other two cases relied on by learned counsel for the applicant do to a certain extent support the submissions made by him but in preference to these cases I am inclined to agree with the decisions of this Court in the two cases referred to above. IN Jwala Devi's case (supra) it was held that a vakalatnama in the usual terms would necessarily imply the power to do everything that was necessary for the proper conduct of the case, and if the case had been decided exprate to have that order set aside and the case heard on the merits. IN Jyoti Prasad's case (supra) it was held:-