Laxmi Narain Mittal, J. - (1.) DEFENDANT -Ranjit Singh has approached this Court by way of instant revision petition filed under Article 227 of the Constitution of India impugning order dated 01.03.2012 Annexure P -1 and order dated 07.01.2013 Annexure P -4 passed by the trial Court. Vide order Annexure P -1, defendant was proceeded against ex parte as none appeared for him. Vide order Annexure P -4, trial Court has dismissed application Annexure P -2 dated 21.09.2012 filed by the defendant for setting aside ex parte proceedings ordered against them vide order Annexure P -1. The defendant alleged in his application Annexure P -2 that his counsel in the trial Court returned the brief to the defendant because he intended to approach this Court for transfer of the suit out of District, but on advice of Senior Counsel, the defendant did not file transfer application in this Court but also could not return his brief to his counsel in the trial court. I have heard learned counsel for the petitioner and perused the case file.
(2.) COUNSEL for the petitioner contended that his counsel in the trial court had pleaded 'no instructions' and therefore, the Court before proceeding ex parte against defendant -petitioner should have issued notice to him. Reliance in support of this contention has been placed on judgment of this Court in the case of Jangir Singh versus M/s. Prem Motors, : 2000 (3) RCR (Civil) 525. I have carefully considered the matter. The contention is completely frivolous and meritless. There is not even a plea either in application Annexure P -2 or in the instant revision petition that petitioner's counsel in the trial Court had pleaded 'no instructions'. Order Annexure P -1 also reveals that none was present for the defendant -petitioner in the trial Court and therefore, there is no question of pleading 'no instructions' by his counsel in the trial Court. If it had been so, the defendant would have taken this plea in application Annexure P -2 or at least in the instant revision petition. However, counsel for the petitioner referred to order dated 23.07.2011 passed by the trial Court as reproduced in paragraph six of the revision petition. According to said order, counsel for defendant during cross -examination of PW -8 Kuljeet Singh prayed for adjournment on the ground that he had to tell his client to engage some other counsel because the plaintiff had cast aspersions on him regarding personal interest in the matter. Accordingly, the case was adjourned to 08.08.2011. However, it does not show that the counsel in the trial Court had pleaded 'no instructions' either on 23.07.2011 or on 08.08.2011 or any subsequent date upto 01.03.2012 or even on 01.03.2012. On the contrary, it is pleaded in paragraph 7 of the revision petition that after the case was adjourned on 23.07.2011, defendant's counsel did not take interest in the case. However, it has not been alleged that defendant's counsel did not appear in the trial Court or pleaded 'no instructions' in the trial Court. Even otherwise, if the defendant is served in the suit and puts in appearance through counsel and later on the counsel pleads 'no instructions', it is not mandatory for the Court to issue notice to the defendant again. If such a course of action is accepted, then a defendant, interested in delaying the suit, can repeat this course of action resulting in miscarriage of justice. It was for the defendant to have ensured that his counsel appeared in the trial Court.
(3.) IN addition to the aforesaid, defendant has not pleaded in application Annexure P -2 or in the instant revision petition that he was not aware of order Annexure P -1 whereby he was proceeded against ex parte. His plea in application Annexure P -2 that he intended to move this Court for transfer of the suit and ultimately he did not file transfer application but failed to return the brief to the counsel also, cannot be accepted because this intention of the plaintiff came into existence on 23.07.2011 when above mentioned order was passed by the trial Court. It would not have taken him more than seven months to decide his course of action of not filing the transfer application till 01.03.2012 when order Annexure P -1 was passed. In addition to the aforesaid, even application Annexure P -2 was moved almost seven months after defendant had been proceeded against ex parte in the trial Court. There is no explanation for the said long delay. The matter does not rest here. Even instant revision petition has been filed on 03.08.2013 i.e. almost seven months after the passing of impugned order Annexure P -4. There is also no explanation for this long delay.;