- (1.) A typical reckless negligence of non filing of written statement for 15 months, after about a dozen adjournments including three with costs resulting in ex-parte proceedings, and yet invoking, revisional jurisdiction to put premium on such lethargy, inaction and negligence by making the counsel scrap goat for setting aside ex-parte order, is the extraordinary prayer in this petition under section 115 C. P. C. and now the facts:
(2.) A suit for ejectment was filed by the plaintiff The defendant who is the petitioner before this Court put up appearance on February 11,1980, through Mr. P. Gadaria and prayed for time to file the written statement. The defendant having failed to file written statement, another adjournment was granted on payment of cost of Rs 15/-, but on May 27, 1980, on written statement was filed and the case was adjourned to August 12,1980 to enable the petitioner to file written statement. The defendant having failed to file written statement was granted yet another adjournment on payment of the cost of Rs. 10/- and the case was then taken up on September 22, 1980 but even then written statement was not filed. On 30th September, 1980, year another adjournment was granted on payment of cost of Rs. 50/- and the case was fixed for October 14,1980 but neither the defendant nor the counsel appeared on October 14,1980, with the result that exparte proceedings were taken. An application for setting aside ex-parte decree was then filed on May 19, 1981 in which it was mentioned that the learned counsel for the defendant has failed to give him legal advice. The trial court was of the opinion that it was the duty of defendant to have contacted his counsel, after giving Vakalatnama. It was found that after about 15 months the case remained pending for filing of written statement and as mentioned above, whereas adjournments were granted on payment of cost sometimes but even then the written statement was not filed. The trial court was of the view that in these circumstances it is impossible to believe that the defendant was unaware of the proceedings A positive finding has been given that the defendant was guilty of gross negligence and now he wants to shift his responsibility to his counsel, which is not tenable. The revision application has been filed in this court against the judgment dated October 22, 1981. Before the Appellate Court it was argued that it was the duty of the counsel to have informed the client but the Additional Civil Judge was of the opinion that in the facts and circumstances of the case, as many adjournments were given for filing of written statement and yet defendant did not avail of them, it is not fair to shift the liability and responsibility of the negligence on the counsel for his own negligence. The first appellate court was of the view that the defendant has failed to give any reason why he could not contact his counsel and what were those abnormal reasons. The first appellate court was also of the view that the application for setting aside ex-parte decree was time barred and no reasons have been given for the delay of four days after getting information about the decree.
(3.) MR. Keshot invited my attention to the judgment of Hon'ble the Supreme Court in Rafiq vs. Munshilal (1), in which the following observations were made : "where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel. " He has also submitted that the written statement was signed but it was not produced by the counsel and, therefore, his client was responsible for it. Mr. Keshot pointed out that it was a hard case where a litigant is being deprived of his premises on account of negligence of his counsel. I have carefully considered the above submission of Mr. Keshot and the judgments of both the courts. Undoubtedly their lordships of Hon'ble the Supreme Court in Rafiq's case have pointed out that in the practice which is being in the conduct of cases of appeals all that is required by the client is to engage his counsel and pay his fees and leave it to him. In such circumstances, if the appeal is dismissed in the absence of his counsel, then due to the present legal system the client should not be deprived of his right to get a decision on merits. ;