MALTI DEVI Vs. AJIT KUMAR JAIN

JUDGEMENT

(1.) This Miscellaneous Appeal has been filed by the defendants/tenant being aggrieved by the order dated 15.04.2011 passed by 11th Additional District Judge (Fast Track), Gwalior, in Civil Case No. 70/2010, refusing to accept the application under Order 9, Rule 13 of C.P.C., making a prayer for setting-aside of ex-parte judgment and decree dated 05.02.2009 passed in Case No. 4- A/2008 [Ajit Kumar Jain v. Smt. Malti Devi and Others].

(2.) It is appellants' contention that this case was fixed on 05.11.2008 for decision on an application under Section 13(2) of the M.P. Accommodation Control Act and therefore, no ex-parte proceedings could have been drawn by the Court of 7th Additional District Judge, Gwalior, against the defendants for non-appearance of their counsel. It is also submitted that if counsel had not appeared, then there was a duty cast on said Court to have issued SPC in favour of the defendants so to make alternate arrangements for engaging a counsel rather than passing an ex-parte order. Learned counsel for the appellants has placed reliance on the judgment of this Court in the case of Ram Vishal v. Shobha Ram and Others as reported in 2006(2) MPLJ 68, wherein it has been held that power to draw ex-parte proceedings can be exercised only when the suit is called on for hearing on merits. He has also placed reliance on the judgment of this Court in the case of Vaianti Bai (Smt.) v. Jairam as reported in 2008(II) MPWN 168, wherein this Court was pleased to observe that counsel engaged by defendant not appeared without intimation to his client. Court should enquire the cause and should inform the party. Proceeding ex-parte not proper; ex-parte decree was set-aside. It has been held that duly engaged counsel not appearing or pleading no instructions. Party concerned should be noticed by the Court instead of proceeding ex-parte. He has also placed reliance on the judgment of this Court in the case of Benibai (Smt.) v. Smt Champabai as reported in 1996 JLJ 436, wherein it has been held that if counsel appearing in the case, pleads no instructions, then cause of such no instructions should be made known to the Court. Court should also enquire the cause. Duty of the counsel is to inform his client before he pleads no instructions and submits that since his counsel had not appeared on the due date, therefore, the Court was not authorised to proceed ex-parte.

(3.) Learned counsel for the appellants also submits that since out of several respondents, only defendant No. 2-Rajkumar was looking after the case and since he had fallen sick, therefore, he could not appear before the Court on the given date and he was advised rest from 01.11.2008 till 10.02.2009, therefore, the Court should have set-aside the ex-parte judgment and decree.