ASGHER HUSSAIN Vs. VICARUNNISA BEGUM

JUDGEMENT

(1.) This Civil Revision Petition arises out of an application filed by the petitioner to set aside the ex parte decree passed in O.S. No. 107/1 of 1954-55 on the file of the Third Judge, City Civil Court, Hyderabad. In the petition filed by the Advocate on behalf of the petitioner, lie stated that as he was held up in the Jagirdars Debt Settlement Board, he came to Court at 2 o clock and that the suit was decreed ex parte. The petitioner herein filed an affidavit stating that as the advocate was arguing before the Jagirdars Debt Settlement Board, his Advocate was not present when the suit was called on for hearing.It is admitted that the petitioner was present in Court when the case was called. No counter was filed in the case. But still, the Third Judge, City Civil Court dismissed the application. He held that the mere fact that the advocate was arguing in another Court was not a sufficient cause to set aside the ex parte decree and he dismissed the application. He also observed that in the affidavit, all the statements made in the petition were not repeated.On appeal, the Chief Judge, City Civil Court confirmed the order and held that the appellants affidavit "has no legal significance because the facts set out in the petition have not been mentioned there-in",and that

(2.) The only question that arises for decision in the Civil Revision Petition is whether the absence of a lawyer by reason of his being engaged in another court is not a sufficient cause within the meaning of Order IX Rule 13 C.P.C. to set aside the ex parte decree. I have no doubt that if an Advocate is engaged in another Court and is not in a position to appear in a suit or in an appeal, it is a sufficient cause for setting aside an ex parte decree.The facts set out above clearly show that the defendant was present in Court at the time when the suit was called on for hearing. The record of the Court, viz., the judgment, shows that the Advocate had come to Court and signed on the judgment as required by the Judge immediately after it was delivered. In the petition signed by the Advocate, he had given a valid excuse for his absence, viz., that he was arguing before the Jagirdars Debt Settlement Board.It is not possible for the advocate to he present in both the courts at the same time. The duty of the Court is to administer justice in accordance with law. The court ought not to exercise a punitive jurisdiction by declaring the defendant ex parte 01 dismissing the suit for default in such circumstances. The proper course for the court is to pass over the suit or the appeal in order to enable the Advocate to finish his case in the other Court and appear before it.

(3.) The learned Advocate for the respondent invited my attention to a decision of the Lahore High Court in Chuni Lal v. Gandu Mal, AIR 1927 Lah 791 (1) wherein the learned Judge refused to set aside an order of dismissal of default even though the petitioners counsel was engaged in another Court. A contrary view has been taken by the Hyderabad High Court in Bansilal v. Mukundas, AIR 1952 Hyd 155.Though on the particular facts of the case, the learned Judges refused to restore the case dismissed for default, they rightly held that: