BAGISHA DHERKAR Vs. HARA KANTA BHUYAN

JUDGEMENT

(1.) This revision petition arises out of the appellate order dated 30th November, 1988 passed by (he learned Asstt. District Judge, Sonitpur, Tezpur in Misc. Appeal No 6/88, thereby dismissing the appeal and confirming the ex-parte order passed by the learned trial Court. Plaintiff respondent filed a suit for declaration and title, with further relief of possession and mandatory injunction in respect of the suit land, which they have claimed to have purchased as auction purchaser. The defendant-petitioners contested the suit by filling a joint written statement. Their plea was that the suit land was their ancestral property, of which they have all along been in possession, the alleged auction was fraudulent. This Title Suit No. 8 of 1981 was pending in the Court of the Sadar Mansiff, Tezpur and eventually transferred to the Court of Munsiff, Biswanath Chariali and re-numbered as Title Suit No. 73/87. All along their counsel appeared but the defendants were no informed of the date of evidence, either by the counsel or by the transferee Court. An ex-parte decree was passed of which they came to know on 15.1.88 through their lawyer at Tezpur. The copy of the ex-parte judgement as passed by the trial Court on 6.1.88 reads: as follows:

(2.) The petitioners moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte judgment. This application was disallowed and by the impugned order their appeal was dismissed. Hence the present revision petition.

(3.) Learned counsel appearing for the petitioner urged that the petitioners are illiterate villagers and not conversant with the Court's procedure, but for the remissness on the part of the counsel they should not be penalised with an ex-parte decree, and deprived of their ancestral home and hearth. Reliance has been placed on two decisions of the Supreme Court as reported in Sangram Singh -Vs- Election Tribunal, Kotah, AIR 1955 SC 425 and Rafiq and Another-Vs- Munshilal and Another, AIR 1981 SC 1400, wherein the Supreme Court held that the party should not suffer for the misdemeanour or inaction of his counsel.