V.S.KOKJE,J. - (1.) HEARD Shri I.R. Choudhary, learned counsel for the appellant and Shri Pradeep Shah, learned counsel for the respondent.
(2.) THIS is an appeal against an ex-parte decree for restitution of conjugal rights passed on an application under Section 9 of the Hindu Marriage Act, 1955. The husband filed a case before the District Judge, Churu on 5.6.93. The notice was served and the appellant wife appeared before the learned District Judge through her father on 24.7.93. On 18.9.93 she was represented by Shri Rakesh Verma Advocate. The case was then fixed for conciliation and then was adjourned to 6.11.93, 29.1.94 and 26.2.94. Out of these, on 26.2.94 the Presiding Officer was on leave. On 2.4.94 i.e. on the next day before the Presiding Officer after appearance of the learned counsel for the appellant the court closed the right of the appellant to file reply. On the next date of hearing i.e. 7.5.94 the counsel for the wife moved an application under Section 151 CPC with an unattested affidavit and the case then was adjourned to 16.7.94 for reply and arguments on that application. On 16.7.94 time was sought by the learned counsel for the husband to file reply and the case was fixed on 20.8.94, on that date the Presiding Officer was on leave. On the next date i.e. 3.9.94 again the husband's counsel sought time for filing a reply to the application under Section 151 CPC and the case was adjourned to 17.9.94. On that date the Presiding Officer was on leave. The case was fixed on 15.10.94 and again the Presiding Officer was on leave and even on that date the learned counsel for the husband sought time to file reply. On 11.11.94 the learned counsel for the wife Shri Rakesh Verma pleaded no instructions orally and by writing in the margin of the proceedings the words "No instructions" and signing under them. The Court then gave call for the non-applicant wife and on her not responding to the calls because of her absence ordered ex-parte proceedings to be taken against her. On the next date i.e. 17.12.94 ex-parte evidence was recorded and ultimately on 11.1.95 ex-parte decree was passed. It is in this setting that this case has come before this Court. The learned counsel for the appellant wife submits that having engaged a counsel the appellant was complacent that her interest would be looked after by her counsel. She was therefore not present when the counsel pleaded no instructions before the Court. She also claims that the counsel did not intimate her of his having pleaded no instructions or his intention to do so. The learned counsel for the appellant further submits that in the matrimonial cases an opportunity to contest has to be given and ex-parte decrees have to be discouraged. He relies on a Division Bench decision of this Court in Banshi Dhar v. Chandra, 1987 RLW 628. The learned counsel also relies on a decision of the Madhya Pradesh High Court Smt. Benibai v. Smt. Champabai, AIR 1996 MP 243, wherein the learned Single Judge of that Court has observed that it is always the duty of the counsel before pleading no instructions to inform the party that for a particular reason he shall not be appearing in the case and shall be pleading no instructions. A person who is not present in the Court pre-supposes that because of engagement of a counsel his interest would be properly looked after. It is the duty of a counsel to inform him before he proceeds to plead no instructions. It was further observed that it was the duty of the Court also to inquire as to why and under what circumstances the counsel was pleading no instructions. The Court cannot be a silent spectator to the scene which is staged in the Court. If a counsel declined to act up to his duty then the Judge has to act as it is his duty to administer justice. The judicial conscience of the Judge should always be satisfied before he permits a lawyer either to withdraw or to retire from the case.
(3.) THE learned counsel further relied on a decision of the Supreme Court in Tahil Ram Issardas Sadarangani and Ors. v. Ramchand Issardas Sadarangani and Anr., 1993(2) R.C.R.(Criminal) 617 : AIR 1993 SC 1182, wherein it has been observed that when a Advocate withdraws his power in absence of the client and when the client is not aware of the date of hearing dismissal of petition in default would be for no fault of the client and should be set aside. Another decision of the Supreme Court relied upon was the case of Malkiat Singh v. Joginder Singh, AIR 1998 SC 258 : 1998(1) RCR (Civil) 277 (SC). wherein it was observed that when the litigant was not negligent or careless and moved the Court as soon as knowing of the ex-parte decree and when the litigant had engaged a counsel and was following the proceedings the litigant cannot be punished for his counsel pleading no instructions.;