JAGDISH SINGH Vs. MOHAN LAL

JUDGEMENT

(1.) PETITIONER herein filed a declaratory suit in the court of Sub -Registrar Munsiff, Jammu against Mohan Lal, respondent herein, and one Sagar Singh in which trial court passed an ex -parte decree declaring the sale deed executed by Sagra Singh in favour of Mohan Lal in regard to the suit land as void, inoperative as against the rights of the petitioner herein. Mohan Lal respondent herein then filed application under Order 9 Rule 13 C. P. C. for setting aside ex -parte decree passed on 30 -11 -1988. Learned Sub -Registrar Munsiff vide his order dated 30 -11 -1989 allowed the application and set aside the ex -parte decree subject to payment of Rs. 100/ - as costs to the petitioner herein. Aggrieved by this order petitioner has come up in revision before this Court.

(2.) I have heard the learned counsel for the parties and perused various documents Mr. Puri learned counsel appearing for the petitioner has argued that there was absolutely no cause shown by the respondent for setting aside ex -parte decree, especially when ex -parte proceedings were initiated by the trial court in presence of Shri H. S. Dogra Advocate for the respondent who had pleaded no instructions from his client. According to him his junior advocate received costs inadvertantly which were subsequently deposited with the trial court. Mr. Sharma learned counsel for the respondent, on the other hand, has contended that his client cannot be penalised for the negligence and inaction on the part of his counsel who neither informed the respondent about the date fixed in the case nor about passing of ex -parte decree.

(3.) ORDER 9 Rule 13 C. P. C. requires the defendants to satisfy the court only on the point that he had sufficient counsel for his non -appearance on the date when suit was actually called for hearing. It appears that on the day the case was called by the trial court Shri H. S. Dogra who was appearing for the respondent reported no instructions and the trial court proceeded ex -parte against the respondent. He did not inform the respondent about initiating of ex -parte proceedings and in fact it was due to his inaction that ex -parte decree was granted by the trial court against the respondent. Trial court has come to the conclusion that respondent was all along posted out side the jurisdiction of the court and considering all the facts and circumstances it held that respondent had made out a sufficient cause for setting aside exparte decree passed against him. In revisional jurisdiction this court has not to go into the facts of the case which had been adjudicated upon by the trial court. It, however, remains a fact that due to negligence and inaction on part of counsel his client is not to be penalised. The respondent has filed application for setting aside ex -parte decree in time and has also shown sufficient cause for setting aside the same and under such circumstances there was no option left for the trial court except to grant his prayer. Moreover, it has been brought to the notice of this court that Smt. Sumanbala advocate received the costs of Rs. 100/ - on 4 -12 -1989 from the respondent when impugned order was passed on 30 -11 -89. Costs were, however, deposited back with the trial court on 1 -1 -1990. Depositing of costs back with the court cannot over -ride the fact that counsel for the petitioner had consented to the passing of the order by the trial court by receiving costs.