DIKSHANT SHARMA Vs. GAINDI LAL JAIN

JUDGEMENT

(1.) ON 2. 6. 1997, the petitioner filed an application u/o. 9 R. 13 CPC before the learned Additional Civil Judge (Senior Division ) No. 2 Jaipur District Jaipur seeking quashing of the ex-parte decree dated 28. 11. 1995 on the ground that he never instructed Shri Surendra Singh Shekhawat Advocate to appear on his behalf, but the advocate filed his vakalatnama on 17. 1. 1991 on behalf of the petitioner in the suit instituted by the plaintiff-respondent. It was also averred that Shri Surendra Singh Shekhawat Advocate did not appear in the suit and the suit proceeded ex-parte on 27. 8. 1993. The petitioner came to know for the first time on 1. 6. 1997 that ex parte decree in the suit was passed against the petitioner on 28. 11. 1995. Under those circumstances the petitioner prayed that the ex-parte dec-ree deserves to be set aside. The learned Additional Civil Judge dismissed the application vide order dated 12. 7. 1999. The petitioner preferred appeal against the said order U/o. 43 R. 1 CPC. The learned Additional District Judge No. 2 Jaipur District Jaipur vide judgment dated 9. 8. 1999 dismissed the appeal. The concurrent findings of the Courts below have now been assailed in the instant revision by the defendant-petitioner.

(2.) MR. Sudhanshu Kasliwal, learned counsel appearing for the petitioner at the outset submitted that the allegations levelled against counsel Sarva Shri Surendra Singh Shekhawat and Bhargirath Singh Shekhawat be treated as abandoned. An application duly signed by the petitioner supported by his affidavit has also been filed before this Court by the learned counsel which has been kept on record. The only contention of the learned counsel is that the petitioner has no knowledge about ex-parte proceedings and ex-parte decree. It was the duty of the counsel of the petitioner to appear continuously on behalf of the petitioner in the suit or if he did not want to appear he ought to have informed the petitioner but without such information the ex-parte proceedings and the ex-parte decree passed against the defendant-petitioner deserve to be set aside. Reliance was placed on Smt. Gayatri vs. Mahaveer Prasad (1), Tahil Ram Issardas Sadarangani & Ors. vs. Ram Chand Issardas Sadarangani & Anr. (2), Malkiat Singh & Anr. vs. Joginder Singh & Ors. (3), Smt. Lachi Tewari & Ors. vs. Director of Land Records & Ors. (4), Bank of India vs. M/s. Mehta Brothers & Ors. (5) & L. Naik Mahabir Singh vs. Chief of Army Staff

(3.) A look at the proceedings of the trial Court reveals that the suit came to be instituted by the plaintiff-respondent on 16. 1. 1991. On 17. 1. 1991 Shri Surendra Singh Shekhawat Advocate filed his vakalatnama on behalf of he petitioner. On April 15, 1993, an application was filed by the plaintiff to delete the name of the defendant No. 1 Shri Gopal Sharma and name of Shri Gopal Sharma, defendant No. 1 was accordingly deleted from the plaint. The advocate Shri Surendra Singh Shekhawat, continuously appeared before the Court on behalf of the petitioner. The case thereafter transferred to the Court of Munsif and Judicial Magistrate Jaipur District Jaipur. On 29. 7. 1993 counsel Shri Surendra Singh Shekhawat appeared before the Court and the case was posted for filing written statement on 27. 8. 1993 and on 27. 8. 1993 the defendant and his advocate did not appear before the Court and the defendant-petitioner was proceeded ex parte. Thereafter the case was ad-journed from time to time and ultimately vide judgment and decree dated 28. 11. 1995 the suit of the plaintiff-respondent was decreed.