S.U.Khan - (1.) -This writ petition is directed against the orders dismissing the restoration application of tenant petitioner by trial court and dismissing the revision against the said order by revisional court.
(2.) LANDLORD respondent No. 3 filed suit for ejectment against the tenant petitioner being S.C.C. suit No. 269 of 1994 on the file of J.S.C.C., Kanpur Nagar. In the said suit an order was passed by J.S.C.C., on 17.12.1997, against which revision was filed by the tenant petitioner, in which the file of the suit was summoned. The revision was dismissed on 5.3.1998. Thereafter suit proceeded before J.S.C.C. and IInd Additional J.S.C.C., where petitioner did not appear and the suit was decreed ex parte on 27.10.1998 by IInd Additional J.S.C.C. The tenant petitioner filed restoration application on 23.11.1998 stating therein that after dismissal of revision on 5.3.1998, his previous counsel who was conducting the case at that time told him that he would be intimated about the date fixed by the J.S.C.C. and then he would inform him (defendant) about the same ; that on 20.11.1998, he heard that the suit had been decreed ex parte, hence he engaged another counsel. The tenant petitioner further stated in restoration application that as he was waiting for the information about the date from his previous counsel which he did not receive, hence he could not appear in the suit. The original file of the J.S.C.C. was received back in the Court on 22.3.1998 after dismissal of the revision on 5.3.1998. On 10.4.1998, parties were present in the Court of J.S.C.C., however, as Presiding Officer was on leave, hence 14.5.1998 was fixed as the next date for hearing. On 14.5.1998 plaintiff's counsel was present, however, no one was present for defendant, hence the case was adjourned to 6.7.1998 and it was also directed that the defendant's counsel must be informed. On 6.7.1998, again an order was passed directing that defendant's counsel Sri Ganga Narain Jaiswal must be informed and 12.8.1998 was fixed as the next date of hearing. Daftari, Kanhaiya Lal gave report on order sheet on 18.7.1998 that Sri Jaiswal, learned counsel for the defendant informed him that the client had taken away his file, however, Sri Jaiswal refused to sign the order sheet. On 12.8.1998, the suit was transferred from the Court of J.S.C.C. to the Court of IInd Additional J.S.C.C. in view of an administrative order dated 6.8.1998, passed by District Judge. The parties were directed to appear before the transferee court on 24.8.1998. On the order sheet dated 12.8.1998, whereby the file was directed to be transferred to IInd Additional J.S.C.C. and 24.8.1998 was fixed, Sri Jaiswal, learned counsel for the defendant made his signature. The defendant vehemently denied the signatures of Sri Jaiswal on the order sheet dated 12.8.1998. Defendant also asserted that the report of daftari dated 18.7.1998, was also wrong. The defendant also asserted in the restoration application that the ex parte decree should be set aside as Rule 89A of General Rule Civil was not complied with, as no information of transfer of suit was given to him. The restoration application (registered as Misc. Case No. 62/74/1998) was rejected by the IInd Additional J.S.C.C., Kanpur Nagar, on 20.4.1999. The tenant petitioner filed revision against the same being S.C.C. Revision No. 120 of 1999. The said revision was also dismissed by VIIIth Additional District Judge, Kanpur, through judgment and order dated 14.10.1999. This writ petition is directed against the aforesaid judgment and orders.
(3.) THE revisional court has also considered the previous defaults of the tenant which were not at all relevant. Even though the conduct of the tenant petitioner is not aboveboard and his anxiety to delay the proceedings is writ large on the face of the record, however, there is an apparent error in the orders passed by the courts below rejecting the restoration application. Even otherwise, it is always in the interest of justice to decide the matter on merit unless defendant has been extremely negligent and his absence is deliberate. On the order sheet daftari gave his report on 18.7.1998 to the effect that when he requested Sri Jaiswal, previous learned counsel of the defendant to acknowledge the information of 12.8.1998, next date, by signing the order sheet, learned advocate refused to do so on the ground that the tenant had taken away the file from him and he was no more required to represent the defendant. When Sri Jaiswal had already intimated that he was no more representing the defendant, then it was not proper for him to sign the order sheet of 12.8.1998. Even if a counsel, after intimating that he was no more representing the client, makes the signatures over the order sheet regarding the transfer of case to another court and fixing the next date, it is no information to the client at least for the purposes of restoration application. Technically, unless vakalatnama is withdrawn, advocate continues to represent the client, however, this technicality cannot come in the way of restoration. Rule 89A General Rule Civil cannot be said to have been complied with in letter and spirit, particularly if an advocate, makes his signatures on the order sheet after declaring that he was not representing the client. Even if it is held that technically notice of transfer of case was sufficient and Rule 89A had been complied with, still it can very safely be presumed that defendant must not had actually known the date and transferee court. If an advocate intimates that client has taken away the file from him, he is in no position to inform the client about the next date and transferee court. Both the courts below have not recorded any findings with regard to actual knowledge of defendant about the transfer of the case from J.S.C.C. to IInd Additional J.S.C.C. and knowledge of the date fixed there, i.e., 24.8.1998. It was better for the J.S.C.C./IInd Additional J.S.C.C. to have issued notice to the defendant about the transfer of the case and the date fixed in transferee court after his previous counsel, through, daftari had intimated that client had taken away the file from him.;