(1.) AN ex-parte decree of divorce was passed against the petitioner-wife. For setting aside the same the petitioner filed M. C. C. When the date was fixed for evidence, the petitioner changed her counsel and Vakalatnama of Shri J. S. L. Sinha, Advocate was filed on March 13, 1999. An application was filed on behalf of the counsel that the counsel was having cardiac problem on the said date and was unable to pursue the case of the petitioner. Trial Court rejected the application and also closed the case as well as right of leading evidence of the petitioner on the ground that petitioner had changed certain Advocates on prior occasions and the application did not seem to be bonafide and the matter was being protracted.
(2.) HAVING heard the learned counsel for the parties, I am of the opinion that the impugned order, if allowed to stand, would occasion failure of justice. An ex-parte decree of divorce has been passed against the petitioner. It is true that petitioner had changed certain Advocates but that cannot by itself be a ground to reject an application moved by engaging another counsel on the ground of his own ill-health. It cannot be said that the application moved by the counsel was suffering from the vice of malafides. Obviously he was ailing on the said date. The trial Court ought to have fixed another date for proceeding in the matter and last opportunity ought to have been granted to the petitioner to pursue her case and lead evidence.
(3.) IT is settled law that for mistake of a counsel or for the reasons attributable to the counsel's health a litigant should not suffer. Petitioner has done whatever she could do. Hence it cannot be said that the order passed by the trial Court, if set aside, would occasion in failure of justice.