LEELA & OTHERS Vs. MANSA RAM & OTHERS

JUDGEMENT

(1.) The petitioners herein/defendants, in Civil Suit No. 117-1 of 2009, under, orders recorded by the learned trial Judge, on 19.10.2013, were proceeded against ex-parte. At the afore stage, the afore Civil Suit had progressed up to the stage, of adduction of defendants' evidence. The afore ex-parte order was made by the learned trial Judge, apparently, on an application moved by the counsel, engaged by the petitioners (for short "the defendants"), one Mohinder Verma, Advocate, who, therein pleaded no instructions from the defendants, and, obviously sought permission, for, his being permitted to withdraw, as, counsel for the defendants. The learned trial Judge, though proceeded, to, obviously allow the afore application, as, moved therebefore, by the learned counsel for the defendants, and, was also, thereafter rather enjoined, to ensure, qua subsequent thereto, representation being made on behalf of the defendants, comprised in its issuing Court notices upon the defendants, (i) nonetheless, it omitted to recourse the afore apt mechanism, merely on the pretext, qua, since the defendants' not meteing instructions to the counsel engaged previously by them, hence, there being no necessity to issue Court notices upon them. Prima-facie the afore reason is flimsy and extremely tenuous, and, works against the indefeasible rights of the defendants, to, ensure their representation, in, the Civil Suit concerned, given, the counsel concerned, making an application, that, for want of instructions being meted to him, his being permitted, to, withdraw as their counsel.

(2.) Even though, the afore reasons assigned by this Court, are sufficient, to, conclude, qua, the order recorded, on 19.10.2013 being legally frail, yet, the aggrieved defendants, were also enjoined to, in their application, cast under the provisions of Order 9 Rule 7 of Code of Civil Procedure, make averments therein qua, theirs, acquiring belated knowledge, vis-a-vis, the afore order, and, theirs thereafter moving it, within the prescribed period of limitation, commencing from the date of theirs acquiring knowledge, vis-a-vis, the rendition of the afore order against them.

(3.) Further, on, the contentious pleadings of the parties, the learned trial Judge, struck an apposite issue, and, with the AW-1, while stepping into the witness box, rendering a testification in his examination-in-chief, qua, his acquiring knowledge, vis-a-vis, the afore order, on, 10.8.2015, and, thereafter, qua upon, his collecting the copy of the order rendered on 22.8.2015, his, instituting the afore application, before the learned trial Judge, (i) hence prima-facie since the date of acquisition of knowledge, by the aggrieved defendants, hence the application standing moved within limitation, thereupon, an affirmative order was enjoined to be made thereon. Significantly, the afore AW-1, while being subjected, to cross-examination, and, an apposite suggestion being put thereat to him, by the Counsel concerned, vis-a-vis, his being communicated by his hitherto counsel, yet given his denying the afore suggestion, and, after the afore denial being made by the afore applicant, the learned counsel for the defendants, rather not, for countervailing, the afore denial, citing Mr. Mohinder Verma, as, a witness, for, ensuring elicitation from him, qua his making communications to the aggrieved defendants. Consequently, when the making of afore endeavors rather constituted, eruption of best evidence, for supporting the reasons, assigned by the learned trial Judge, in declining the relief to the aggrieved defendants, and, also for tearing apart the factum, qua, despite communications being made by the hitherto counsel engaged by the defendants, yet theirs not responding thereto, ((i) thereupon the afore omissions, constrain a conclusion qua the aggrieved defendants, remaining un- communicated by their previous counsel, vis-a-vis, the fate and progress of their case. The further corollary thereof is that they acquired knowledge, only on the date, as, enumerated in examination in chief of AW-1, and, when the instant application is thereafter moved within limitation, it, was required to be allowed.