R.K. Gulati, J. - (1.) PETITIONERS are the tenants of House No. 29/37 Beldari Mohal, Sri Dwarika Singh Road, Kanpur. A suit for ejectment and recovery of rent was filed by the landlord against the petitioners which was decreed by the trial Court. Against that order, the petitioners preferred a revision before the District Judge, Kanpur Nagar, on 1 -1 -1990 the revision was dismissed in default for non -appearance of the revisionists (petitioners). An application for setting aside the order dated 1 -1 -1990 was also dismissed by an order dated 16 -3 -1990. Being aggrieved against the later order, the petitioner have preferred this writ petition. It is not dispute that during the first half of the working hours of the Court on the date fixed for hearing of the revision, an application for adjournment was moved by the petitioners' Counsel Km. Srilekha Vidyarthi on the ground that she was suffering from throat trouble. However, the application was rejected with the direction to put up the case for further orders at 2.30 p.m. The case of the petitioners is that at 2.30 p.m. when the case was called out, the first petitioner, Smt. Rajjan Devi was present and she requested the Court to pass over the case for a short while so that she could bring her lawyer to argue the case. Their further case is that as the Counsel was busy in some other Court, it took some time to return when it transpired that the case had been dismissed in default.
(2.) IN the impugned order it has been observed that neither the provisionist nor their Counsel had put in appearance when the case was called out at 2.30 p.m. and further, the assertions to the contrary in the application for restoration were not true inasmuch as, the impugned order was passed at 4 p.m. From this an inference has been drawn that the default on the part of the petitioners for non -appearance was deliberate with ulterior motive to some how get the case adjourned. With these findings, I have carefully gone through the record of the case and have also heard the learned Counsel for the respondent. There is nothing on record to show that the application moved by the petitioners' Counsel on personal ground was at the instance of the petitioners or in an anxiety to get the case adjourned with some ulterior motive. It is accepted at all hands that the first petitioner was present in the Court premises throughout the day but according to the respondent she was watching the proceedings from a distance in the hope that the case would be adjourned. The first petitioner is a widow and an illiterate lady. The other petitioners are either sons or daughters of the first petitioner. Except for the second petitioner all other petitioners are minors. From a perusal of the writ petition it appears that the petitioners are financially week and were not in a position to engage a lawyer and had to approach All India Women's Conference Kanpur Branch for help. It is alleged in the writ petition that the President of the said Bench wrote a letter to Km. Srilekha Vidyarthi D.G.C. (Civil) Kanpur City, for extending free legal aid to the petitioners in view of their weak financial condition and poverty. The petitioners further assert that it is in this background that Km. Srilekha Vidyarthi had filed her vakalatnama in the revision proceedings and without charging any fee from the petitioners. In fairness it must be observed that the contesting respondent has denied the petitioners' case and the circumstances in which the petitioners had engaged their Counsel. Be that as it may, I do not consider it necessary to enter into this controversy.
(3.) I feel satisfied, considering the totality of the circumstances that it is a fit case in which an interference is called for by this Court. The first petitioner had appeared in person before the Court initially when the application for adjournment was moved and the case was ordered to be put up at 2.30 p.m. It was for the petitioners' Counsel in view of that order to appear and look after the petitioners' case. There was not enough time at 2.30 p.m. leaving aside the financial condition of the petitioners to engage another Counsel even if the petitioners wanted to do so, at 2.30 p.m., i.e. when the case was called out. For the default on the part of the lawyer in the circumstances of the present case, in my opinion, the petitioners should not be made to suffer the consequence of the dismissal of the case.;