TATIA, J. - (1.) HEARD learned counsel for the appellant as well as learned counsel for the respondent. Perused the order dated 3rd Jan. , 1993. Perused the record of the trial court by which application of the appellant under order 9 rule 13 CPC was dismissed by the trial court.
(2.) LEARNED counsel for the appellant vehemently assailed the order dated 3rd Jan. , 1993 passed by the trial court by which the above application under order 9 rule 13 CPC was dismissed. According to learned counsel for the appellant, the appellant engaged the advocate and paid his fees, but even then the advocate of the appellant did not appear before the trial court and the suit was decreed by the trial court. Even after the decree Sh. Bhanwar Singh Soni, Advocate did not inform the fate of the suit to the appellant and the appellant came to know about the decree dated 7th Nov. , 1992 only on 21st Jan. , 1993 when the sale Amin came on spot to take possession of the disputed property. Upon above information through sale Amin the appellant went to his advocate on the same day but his advocate was not available on 21st Jan. , 1993 and, therefore, the appellant could meet his advocate only on 22nd Jan. , 1993. Hence, appellant has no knowledge of the decree dated 7th Nov. , 1992 till 21st Jan. , 1993. According to learned counsel for the appellant the appellant cannot be punished for the fault of the advocate and it is the duty of the advocate to inform the appellant about passing of the decree by the trial court. It is also submitted by the learned counsel for the appellant that the procedure adopted by the trial court was also not proper and opportunity under Section 141 CPC should have been allowed to the appellant to produce evidence. I perused the facts of the case and reasoning given by the trial court also. The trial Court taken note of the relevant facts which are as under:- The power has been filed by learned counsel Sh. Bhanwar Singh Soni, Advocate on 27th Oct. , 1999. The case remained pending for filing written statement till 28th Sept. , 1999. When the written statement was closed by the trial court the case was remained pending ex-parte for evidence of the plaintiff on every date before the trial court. Learned counsel for the defendants remained present but on 4. 07. 1992 and; thereafter, nobody appeared on behalf of the appellant-defendants. On 13th Jan. , 1992 evidence was recorded and suit was decree on 7th Nov. , 1992. The learned trial court also took note of the fact that appellant himself in his application, for setting aside ex-parte decree, stated that appellant was in touch with his advocate till 31st Oct. , 1992 and he enquired about the case. It is also taken note of the fact that the appellant admitted in his application that appellant met with his advocate on 22nd Jan. , 1993. On the basis of the above facts, the learned trial court observed that learned counsel Sh. Soni was continuously appearing in the case of the defendant-appellant till 1. 05. 1992 but defendant never appeared before the trial court. The written statement was also closed and an ex-parte order was passed but the defendant did not chose to move any application for setting aside any of the orders or tried to file the written statement.
(3.) IN view of the above facts the trial court rejected the application of the applicant-appellants. It is true that appellant engaged advocate but the facts revealed that appellant were revel interested in contesting the suit. On 28th Sept. , 1991 an opportunity was granted to the defendants to file written statement but they do not chose to do so and ultimately the court closed the right of filing of written statement. On 28th Sept. , 1991, admittedly, the appellant and stated in application that he was in touch with his counsel and lastly he met to his advocate on 31st Oct. , 1992. It appears that he was not interested in filing written statement and, therefore, on 28th Sept. , 1991 when the right to file written statement was closed, till 31st Oct. , 1992, he do not choose to take any steps to contest the suit. Learned advocate remained present on each and every day, therefore, the facts clearly prove that appellant himself was grossly negligent in continuing the suit. So far as contention of learned counsel for the appellant that appellant was never informed of the decision of the case by the counsel is concerned, it is relevant to mention that in trial court, looking to the nature of the proceedings, it is not expected from advocate to search the client and inform the client on each and every date. It is the duty of the litigant to remain in touch with the advocate also because in trial court the presence of the litigants are required for very many purposes to conduct the case, therefore, it is the duty of the client to contact the advocate and to find out the date from the advocate. Here in this case, from very initial stage of filing written statement the appellant has not taken care for contesting the case. No. explanation has been given by the appellants why they remained silent when their written statement was closed. It appears that appellants had no intention to contest the suit but after passing of the decree the appellant had tried to blame his advocate to get benefit of the lenient view normally taken by the courts of law. The balled allegation of the litigant cannot be accepted. ;