NAVIN GURUNG Vs. DHAN BAHADUR GURUNG

JUDGEMENT

(1.) THIS appeal is directed against the order dated 28th February, 2000 by the learned District Judge, South and West in C.M.C. No. 5 of 1999, whereby the application moved by the appellant under Order IX Rule 13 of the Code of Civil Procedure was dismissed. The appellant was defendant No. 2 in the Civil Suit.

(2.) THE appellant, Navin Gurung, a minor was represented by his father Shri Binod Gurung as his guardian in the Civil Suit. 3/8/1999 was fixed for evidence of the plaintiff. It is not disputed before us that the father of the appellant was present in the trial Court on that date. He made an application for adjournment on the ground that his Counsel Shri Taranga Pandit could not come from Darjeeling due to road blockade at 32 mile (N.H. 3 I-A). THE application was rejected by the learned District Judge for two reasons. One is that the application was moved only after the plainliff had entered into the witness box which showed that there was no sincerety in moving the application. THE other was that the signature of the scribe did not appear on the application. THEreafter, ex-parte evidence was recorded and the suit was decreed ex-parte by the learned District Judge on 7.8.1999. THEreupon, an application under Order IX Rule 13 C.P.C. was filed by the appellant along with an affidavit of Shri Taranga Pandit, Advocate. In the application, in paragraph 3 it is averred that the Counsel was unable to appear on 3.8.1999 as he was occupied in the Court irt Darjeeling in relation to certain cases which could not be put off any longer and had even engaged a local counsel to file an adjournment application but the same could not be filed due to some inadvertence. It is submitted on behalf of the appellant that the application had been scribed by some one in the court premises, and if the lawyer did not do his duty, the appellant should not be penalised for that. In support of his submission, he has referred to Rafiq v. Munshilal. On the other hand, Shri A. K. Upadhyaya submits that the application for adjournment was moved contrary to the true factual position and so the appellant is not entitled to any relief. In our view, litigants should make every effort to prosecute their respective cases with due diligence. At the same time, we cannot ignore the fact that sometimes the lawyers do not do their duty. If a lawyer practising in Darjeeling takes up a brief in a Court in Sikkim, it is his duty to appear in the Court in Sikkim by making necessary arrangement for cases at Darjeeling or elsewhere. It is not at all proper for such lawyer not to appear in the Court in Sikkim simply because he has some other cases in Darjeeling, as he is expected to follow norms of professional ethics and try to protect the interests of his client in relation to whom he occupies a position of trust. In such a case, the lawyer may be proceeded against for professional misconduct. However, we do not propose to go that far. In the instant case, we are of the view that he should bear the cost which has been occasioned to the plaintiff /respondent No.1 Dhan Bahadur Gurung. We are of the view that in the facts and circumstances, when the guardian of the appellant did not find his lawyer to conduct his case, he had to take the help of someone. His helplessness was occasioned by the failure on the part of Shri Taranga Pandit to do his duty. In the result, we allow the appeal, set aside the impugned order and the ex-parte judgment and decree and direct that the Civil Suit be reregistered on its original number and be proceeded with expeditiously. Shri Taranga Pandit shall personally pay Rs.2000/- (Rupees two thousand) as cost to respondent No. 1 Dhan Bahadur Gurung. Appeal allowed accordingly.