RAMESH CHAND Vs. JANAKNANDAN SAXENA

JUDGEMENT

(1.) THE appeal is filed against the order dated 3.12.2005. passed by the District Judge, Tonk whereby the learned Judge has dismissed the application under Order 9 Rule 13 of the Civil Procedure Code (henceforth to be referred to as 'the Code', for short) filed by the appellant.

(2.) THE brief facts of the case are that the plaintiff-respondent filed a civil suit for specific performance of a contract dated 27.2.1999 which was allegedly executed by the appellant. The appellant filed his written statement in which he denied the execution of the alleged agreement to sell. However, after the evidence of both the parties was recorded, on 29.3.2000 the appellant's counsel pleaded "no instructions". Therefore, the learned trial court proceeded ex-parte against the appellant. Eventually, on 1.4.2000, an ex parte judgment and decree was passed in favour of the plaintiff-respondent and against the defendant-appellant. Once, the appellant came to know about the ex-parte judgment and decree, on 24.7.2001 he filed an application under Order 9 Rule 13 of the Code for setting aside the ex-parte judgment and decree. According to his application, the appellant was residing at Ratlam in M.P. Therefore, on his behalf, he engaged the services of an advocate. However, on 29.3.2000, the advocate fell ill. Therefore, his colleague pleaded "no instructions" on behalf of the appellant. But his lawyer did not inform him either about the lawyer's pleading "no instructions", or about the commencement of the exparte proceedings. Therefore, the appellant had no information or knowledge about the ex-parte proceedings having commenced against him. It was only on 9.7.2001 when one Babulal informed him about the ex-parte judgment and decree, that existence of the ex-parte judgment and decree came to his knowledge. Immediately, on 24.7.2001 he filed the said application under Order 9 Rule 13 of the Code along with an application under Section 5 of the Limitation Act.

(3.) MR . Praveen Jain, the learned counsel for the appellant, has argued that since the defendant was a resident of Ratlam in M.P., he was not aware of the court proceedings pending in Rajasthan. It was the duty of his advocate to keep him informed. However, the advocate neither informed him about his stating before the court that he has "no instructions" from the client, nor about the commencement of the ex parte proceedings against him. Hence, he should not be made to suffer for the fault of his lawyer. Secondly, that the learned Judge has erroneously concluded that the matter is covered by Order 17, Rule 2 of the Code. In fact, the case is one under Order 9, Rule 13 of the Code. Therefore, the ex-parte judgment and decree should have been set aside under Order 9, Rule 13 of the Code.