Amitava Lala, J. - (1.) This is an application under Order 9 Rule 13 of the Code of Civil Procedure. The scope and ambit of the aforesaid provision is that in any case in which a decree is passed ex -parte against a defendant, he may apply to the court by which the decree was passed for an order to set it aside and if he satisfies the court that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the suit was called for hearing, the court shall pass an appropriate order setting aside the decree. According to the petitioner, this is a case where it was prevented by sufficient cause. Therefore, two material aspects are necessary to qualify and come to an appropriate conclusion i.e. (a) Decree was passed ex parte; (b) The petitioner was prevented by sufficient cause in appearing when such suit was taken up for hearing. The instant suit is an "undefended suit" in which the defendant did not choose to file its written statement upon entering appearance and the decree was passed. Therefore, such decree, can be construed as decree ex parte. There is a gulf of difference between the suit heard by a court under the category of "undefended suit" in which one did not choose to enter appearance or did not choose to file written statement and the suit, in which a litigant was prevented from appearing when the same was called on for hearing. If a decree is passed, in the second case, the same ought to be construed as decree passed exparte, but if a decree is passed in the first case, the same cannot be construed decree exparte. Therefore, the very foundation of Order 9 Rule 13 of the Code of Civil Procedure is inapplicable herein. One is voluntary action and other is involuntary action. If one prevents himself voluntarily the same can not be equated with the prevention by sufficient cause involuntarily. Usual grammatical meaning cannot necessarily be equated with legal meaning.
(2.) Filing of the written statement is not only an obligation on the part of the Advocate alone but also on the part of the defaulting party who will have to verity such written statement before filing the same. Diligence of the litigant is prime consideration specially in hearing suit unlike writ or appeal where litigant's presence may not be so important. Bare statement of the defaulting litigant cannot be put upon the shoulder of his advocate. There is also a serious lapse on the part of the Advocate whom such party has engaged. There is an obligation on the part of an advocate in discharging the duties before the Court of Law on behalf of his client since he was then acting as an agent of the litigant by whom he was entrusted to perform duties. But, that does not necessarily mean, specially in hearing the suit, the litigant will sit tight over the matter. Chasing litigants are always given credence by the Court. The petitioner is a Company having its registered office at Calcutta. A company cannot run without persons having legal knowledge. In other words such a company can not be said as lay clients in the eye of law in view of the judgment reported in : 1993(2) SCC 185 (Salil Dutta vs. T.M. & MC Put. Ltd.) by which earlier logic was overruled.
(3.) Moreover the practice of the Court is that in hearing suits always more than one counsel should be engaged so that there can not be any delay or defeat the cause in absence of any one of the counsels. Such concepts, idea, tradition, practice are gradually diminishing in front of high rise of writ oriented concept. Quantity is gradually encroaching the field of quality. As a result whereof when trouble comes one faces the consequences. In the instant case, the cause of action has been made out in paragraph 10 of such petition about absence of one of the Advocates. According to the petitioner, learned Advocate was waiting in the court room at about 12.45 p.m. but he proceeded to another Court in attending a matter. Even particulars of that matter has been given in paragraph 10 of the petition by the petitioner himself as true to knowledge. But, surprisingly he has also stated as true to knowledge that the suit was taken up and decree was passed as against defendant no. 1 when one of the Learned Advocates for it prayed for adjournment which was refused. Even the order under which the suit was decreed has not been annexed. This is the sole explanation for the purpose of setting aside the decree. Records says that one other Advocate appeared but the suit was decreed against this defendant no. 1 petitioner by treating the same as undefended suit. Even on this account the decree can not be said to be ex parte. No explanation is given about him/her as to why she has not proceeded with the matter instead of asking adjournment. It appears that the petitioner has not come with clean hands. Therefore, the petitioner cannot earn any sympathy from the Court of Law. In further the explanation is given in respect of an Advocate but surprisingly no explanation is given about presence or absence of the Ld. Advocate -on -record Mr. Sajal Kr. Das in the petition.;