LAD BAI Vs. KALYAN MAL

JUDGEMENT

(1.) THIS is plaintiff's second appeal against the judgment and decree dated 11 -1 -1975 passed by Additional District Judge, Sawai Madhopur confirming the judgment and decree passed by Additional Munsif, Sawai Modhopur.

(2.) LEARNED Counsel for the appellant has submitted that the judgment of the first appellate court should beset aside on the simple ground that it decided the appeal without hearing learned Counsel for the appellant. It appears from the judgment and the record that Shri Abid Ali, Advocate was engaged by the appellant Smt. Lad Bai to conduct her appeal before the first appellate court. Mr. Abid Ali was present before the first appellate court on 19 -8 -1975 when the case was adjourned for arguments on 19 -9 -1975. Counsels for the parties were present on 19 -9 -1975 also but since learned Counsel for the appellant was busy, he sought one more adjournment and the first appellate court fixed the case for hearing on 1 -11 -1975, with the observations that no further adjournment will be granted. On 1 -11 -1975, Shri R.D. Purohit, Advocate appeared on behalf of the appellant and he submitted a written application along with his Vakalatnama, praying for an adjournment. Anjournment was refused and the application was dismissed and Shri Abid Ali, pleaded no instructions and refused to argue the case. Thereupon, learned first appellate court heard learned Counsel for the respondent and dismissed the appeal on merits. Hence, this second appeal.

(3.) IT is true that the case was first for arguments on 1 -11 -1975 and the learned first appellate court had fixed observed on the last date that no further adjournment will be granted and ordinarily, the case should have been heard and arguments must have been advanced on 1 -11 -1975 but if the appellant had engaged another counsel Shri R.D. Purohit and had submitted an application for adjournment along with his Vakalatnama, he could have been granted reasonable time to prepare the appeal and make his submissions. It is true that court should insist for early disposal of the cases and should not be very lenient in granting adjournment but if a party wants to change his counsel and engages some other counsel to appear on its behalf, the court should not be rigid and should not hear the matter ex -parte. Discipline has to be maintained and the courts should exercise their discretion judicially and if it appears that the party is trying to avoid early decision or is only interested in delaying the matter and to seek adjournment, the court should insist for early disposal. In the present case, appeal had been filed in 1975 and the respondent was represented by Shri Harishanker Gupta initially. But on 15 -7 -1975, respondent filed Vakalatnama of Shri Ganga Shanker on their behalf and sought adjournment and the learned Additional District Judge granted adjournment to respondent on 15 -7 -1975. Again on 19 -8 -1975 the respondents engaged another counsel Shri Kunj Behari Lai and the case was adjourned on his request on 19 -8 -1975. It cannot be said that the appellant had some ulterior motive or that his engaging Shri R.D. Purohit was not bonafide and therefore, in my view, the learned Additional District Judge was not justified in refusing the request made on behalf of Shri R.D. Purohit for adjournment. Learned Additional District Judge could have insisted that arguments should be made on the following day or he could have granted a very short adjournment but to hear the arguments of learned Counsel for the respondent and deciding the case on merits without hearing the learned Counsel for the appellant was not fair and has caused great prejudice to the appellant for no fault on her part. Learned Additional District Judge could have dismissed the appeal in default but he could not h we proceeded to hear arguments ex -parte. Why a party should suffer for the inaction, deliberate omission or mis -demeanour of his agent, his appointed counsel. Courts are there to do justice to the parties and not to punish them for default of their counsel.