PUNJAB NATIONAL BANK Vs. RAM CHAND DHALL

JUDGEMENT

(1.) This revision is directed against the judgment passed by Additional District Judge, Solan in Civil Miscellaneous Appeal No. 32 -S/14 of 1994/92, dated 17 -11 -1995 whereby the appeal filed by respondent No. 1 against the order passed by Sub -Judge 1st Class, Kandaghat camp at Solan in case No. 64/10 of 1990/88 has been reversed.

(2.) Brief facts giving rise to this case are that Punjab National Bank -respondent No, 1, hereinafter referred to as the plaintiff, filed a suit for recovery of Rs. 1,62,428/70 as far back in the year 1987 wherein Ram Chand Dball -petitioner was arrayed as defendant No. 3 -guarantor, herein after referred to as the defendant alongwith M/s. Ash Udyog and Som Nath Bhargawa, borrowers -defendants, hereinafter referred to as defendants 1 and 2 in the court of Senior Sub -Judge, Solan. It appears that process was ordered to be issued against the defendants and all the defendants were ordered to be proceeded against ex parte on 13 -7 -1987. Defendants No. 1 and 2 do not appear to be aggrieved by the ex parte decree which was passed on 24th June, 1987 by the trial Court. From the record it appears that defendant No. 3 filed two applications under Order 9, Rule 13, C. P. G\, one being 82/10 of 1988 dated 5 -9 -1988 and the other out of which this revision has arisen for setting aside ex parte decree and it is also dated 5 -9 -1988. Both these applications were presented by the same counsel on 7 -9 -1988 and were ordered to be registered by the court on 12 -9 -1988 and date given for service of the plaintiff on these applications was 14 -1C -1988. When application, bearing No. 82/10 of 1988, (Ex. R -2) came up for consideration before the trial Court, it was withdrawn on 14 -10 -1988 and order to the following effect was passed : - "Present : Shri Shashi Pandit, Advocate, for applicant. None for respondent." Learned Counsel for applicant, Shri Shashi Pandit, states at the Bar that he does not want to press the present application. In this view of the matter, the application stands dismissed as not pressed. Be consigned to records. Thus the other application remained for consideration before the trial Court. At this stage it may be appropriate to reproduce the averments made in Ex. R -2, which application was later on withdrawn by the defendant No. 3. For ready reference the relevant averments made in Ex. R -2 by the plaintiff are extracted hereinbelow : "2. That applicant on receipt of summons engaged Shri D. P. Gautam Advocate from Faridabad to conduct his case.

(3.) That unfortunately Shri D. P. Gautam, Advocate who had instructed the applicant that as and when his personal presence will be required, intimation will be sent and then he should contact the said Advocate for gotten to note down the case in his diary and the papers had been misplaced by his clerk. Due to the said reason Shri D. P. Gautam never required applicant to contact him in connection with the case which was pending in the Honble Court titled as P. AT B. v. Mjs. Ash Udyog etc.