KHAZA BASHEERUDDIN Vs. YELIYA S/O RAJIYA

JUDGEMENT

(1.) THIS is plaintiff's revision petition complaining that his application, for setting aside the ex parte dismissal of his suit, was wrongly dismissed by the lower Court as time barred.

(2.) ON 19th Azur 1359 Fasli, the applicant's pleader filed an application in the Court stating that his client (the present applicant) did not see him and was not giving him necessary instructions to proceed with the suit and that consequently he desired to withdraw from the case. The lawyer was good enough to pay process fee for issuing notice to the applicant and the Court posted the case to 13th Dai 1359 Fasli for return of notice. On 13th Dai 1359 Fasli, the notice was not returned served and the Court dismissed the suit for default of the plaintiff. 103 days subsequent to the dismissal, the plaintiff filed the set -aside petition. The Court declined to grant it, it being palpably time barred. On behalf of the applicant, it is argued before me, relying on a decision on Salim v. Avaz;, 14 Deccan L R 146, that the Court should not have dismissed the suit until the notice issued to him at the instance of the Lawyer was returned served, and that consequently the delay in filing the set -aside petition should be excused, as the applicant filed the same immediately he came to know of the dismissal of his suit. I have gone through the ruling which is a Division Bench judgment of this High Court. That ruling does not apply to the present case. There, the Lawyer wanted to withdraw from the suit not because of any default or negligence on the part of his client but for the lawyer's personal reasons and notice of the application for withdrawal was directed to the client but before the notice was returned to the Court, the suit was dismissed. The learned Judges held that the dismissal of the suit was improper since the notice to the party was not returned served. These are not the facts in this case: here, the Lawyer filed an application for withdrawal on the ground that his client did not give him any instructions. If a client did not give him any instructions. If a to give him necessary instructions to proceed with the case or to keep himself acquainted from time to time with the postings in the Court and the purpose of the postings, he has to thank himself. It is not the Lawyer's duty to run after the client. It was good of the Lawyer in this case to have filed an application and to have also paid process for the issue of notice to his client. In my view, this was not necessary in law. On the Lawyer saying that he had no instructions from the client, the Court could have set the suit ex parte & decided it the same day. The issue of notice is superfluous &, in any event, cannot be used to save the applicant from the consequences of his negligence in prosecuting his suit. That he did not know that the suit was dismissed and that too even for such a long period as three months is, on the face of it, ample evidence that the plaintiff did not proceed with his suit with the diligence expected of a litigant. Courts cannot be expected to show any sympathy to such litigants and any indulgence shown in such circumstances will mean only delay in dispensing justice and inconvenience to the other side.