- (1.) Three matters between the parties were pending in different Courts when on October 16, 1974, the suit from which the present proceedings have arisen was fixed for framing issues and another suit between the parties was pending in the Court of Shri Harjit Singh, Subordinate Judge First Class, Ludhiana. The third matter was an application before the District Judge for consolidating the two suits. That application was also fixed for October 16, 1974. When the suit for framing issues was called on for hearing no one appeared for the defendants and proceedings were ordered to be ex parte against them. As a result of that order an ex parte money decree was passed in favour of the petitioner against the respondents. Two days later, that is on November 4, 1974, the respondents made an application under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte decree. By his order under revision, Shri R.C. Sharma, Subordinate Judge Third Class, Ludhiana allowed the application and set aside the ex parte decree subject to payment of Rs. 35/- as costs.
(2.) Mr. M.L. Sarin, learned counsel for the plaintiff-petitioner, submits that there is a glaring error of jurisdiction in the order of the trial Court inasmuch as no finding at all has been recorded about there being any cause much less sufficient cause for non-appearance of the defendant-respondents before the trial Court on November 2, 1974 when the ex parte decree was passed. Counsel has gone further and submitted that even all allegation had not been made in the application for setting aside the decree disclosing any sufficient cause for non-appearance before the Court on the date on which the ex parte decree was passed. The trial Court has held in the order under revision that the counsel for the defendant-respondents appeared before the District Judge in the proceedings for consolidation of the two suits, and though he appeared in the Court of Shri Sharma in some other cases, he did not put in appearance in this particular case though it was called for hearing first at about 10.15 A.M. and for the second time at about 4 P.M. The learned trial Court has rightly held that this amounted to negligence on the part of the Advocate or his clerk. All that relates to October 16, 1974. The learned Subordinate Judge did not proceed to record ex parte evidence and to pass an ex parte decree on that day in spite of the fact that it was a simple money suit for value of goods said to have been supplied by the plaintiff to the defendant. He rightly adjourned the case to October 18, 1974, and he even granted two further adjournments. From October 18 he adjourned it to October 22 and then to November 2, 1974, and it was only when the defendants consistently absented themselves on all the four hearings that ex parte evidence was recorded and ex parte decree was passed. Learned counsel for the defendant-respondents has submitted that his clients had no knowledge of the various dates fixed by the trial Court after October 16, 1974 and that they came to know only on November 4, 1974, when in the course of the hearing of the application for consolidating before the District Judge the plaintiff informed the District Judge that one of the suits having already been decreed, there was no question of the defendants pressing the application for consolidation. Mr. Sarin has shown me copies of the orders of the Court of the District Judge, dated October 1 and November 12, 1974. These orders show that on October 16 counsel for the defendants was present before the District Judge when the plaintiff filed his reply to the application for consolidation which was adjourned for further consideration to October 31, 1974. The order, dated November 12, 1974, states inter alia as below :- "Shri Parween Garg the learned counsel for Muni Lal, opposite party, tells me that the case pending between the parties in the Court of Shri M.R. Garg Subordinate Judge, Ludhiana, has already been decreed ex parte on 2nd November, 1974. The learned counsel for the defendant-petitioner also admits this fact". About a week earlier the defendants had already applied for setting aside the ex parte decree. This order does not show that the plaintiff had informed the District Judge on November 4, 1974, about the suit having been decreed. If that had been done there was no question of the fact being noticed by the District Judge for the first time in his order dated November 12, 1974. Learned counsel for the respondents has referred to the statement of the plaintiff in the proceedings under Order 9, Rule 13 of the Code where the plaintiff appears to have admitted that he informed the Court of the District Judge about the suit having been decreed when he appeared before the District Judge on November 4, 1974. There appears to be obviously some mistake as the record shown to me does not disclose that there was any hearing of the consolidation proceedings before the learned District Judge, Ludhiana, on November 4, 1974. Be that as it may, the fact remains that in a simple money suit for price of goods supplied the defendant-respondents did not show the vigilance expected of them and absented themselves without any rhyme or reason on October 16, 1974. The mere fact that a party engages a counsel does not absolve himself of the responsibility to appear before the Court. If he does not look to his own interest and either does not appear in Court or does not ensure appearance of his attorney or counsel, he normally does so at his own risk. There is no doubt that prima facie counsel for the defendants was negligent in not appearing on the various dates and having once got information that the case was fixed for October 16, 1974, not caring to find out even subsequently as to what had happened therein. That is, however, a matter between the defendants and their counsel. In view of the fact that the defendant did not at all show any cause for non-appearance in the Court below on November 2, 1974, and the finding recorded by the trial Court regarding the negligence of the defendants' counsel which amounts to defendant's own negligence, I am unable to sustain the order under revision.
(3.) This petition is accordingly allowed, the order of the trial Court is reversed, and the application of the defendant-respondents for setting aside the ex parte decree is dismissed. The parties will bear their own costs of the proceedings in this Court. Revision accepted.;