GAURI BAI Vs. MAHILA SARITA

JUDGEMENT

(1.) This Civil Revision has been filed by the petitioners being aggrieved by order dated 20.12.2018 passed in MJC No.46/14 by learned District Judge, Morena, dismissing an application under Order 9 Rule 13 of Code of Civil Procedure.

(2.) It is the contention of the learned counsel for the petitioners that for the fault of the counsel, the party cannot be made to suffer. Learned counsel has placed reliance on the judgment of this High Court in case of Vaianti Bai (Smt). V. Jairam as reported in 2008 (II) MPWN 56, wherein it has been held that if counsel engaged by the defendant did not appear without prior intimation to his client then Court should interfere and proceeding exparte is not proper and exparte decree was set-aside.

(3.) It is also submitted that since original applicant No.1 was ill, therefore, he could not visit his lawyer for the purpose of drafting of written statement and since there is no finding by the learned Court below that original applicant No.1 Ram Kishan Gurjar was not ill and further applicant had duly filed the medical papers of Ram Kishan Gurjar and it is a fact on record that Ram Kishan Gurjar ultimately died during pendency of the application under Order 9 Rule 13 of C.P.C. therefore, learned lower Court should have set aside the exparte order.