The Rajasthan High Court while setting aside an ex-parte order has observed that a party cannot be made to suffer for failure on part of the Counsel to appear or make alternative arrangement in that place.

The Court was considering a Writ Petition challenging the order in a Civil Suit whereby the application filed by the respondents-defendants under Order IX Rule 13 of the Code of Civil Procedure,1908 was allowed by the Trial Court.

The single-bench of Justice Nupur Bhati observed, "Further, as far as the contention of the counsel appearing on behalf of the petitioner-plaintiff that it was the duty of the counsel to make alternative arrangements is concerned this court is of the view that merely because the counsel representing the respondents-defendants failed to make some alternative arrangement, the respondents-defendants cannot be made to suffer for the same as it would not be in the interest of the justice. At this juncture this court finds it apposite to refer to the judgment passed by the Hon’ble Supreme Court in Rafiq v. Munshilal, (1981) 2 SCC 788 wherein the Hon’ble court has taken a view that a party cannot be made to suffer because of the inaction of his advocate."

The Petitioner was represented by Advocate Nitin Trivedi while the Respondent was represented by Advocate Deen Dayal Chitlangi.

The Petitioner had filed the Civil Suit seeking the cancellation of the Sale Deed and perpetual injunction and in response to the plaint, the respondents-defendants filed the written statement. Thereafter, ex-parte proceedings were initiated against the Respondents and subsequently the Trial Court decreed the suit in favour of the petitioner-plaintiff and cancelled the sale deed and restrained the respondents-defendants from alienating, selling or transferring the property in dispute.

Later, the Respondents filed an application under Order IX Rule 13 of the CPC, read with Section 5 of the Limitation Act, 1963, seeking setting aside of the ex-parte decree and for condonation of delay, respectively, while stating that the Counsel for the Respondents had underwent a surgery of cornea transplant as well as he was taking treatment of eyes, therefore, could not appear before the Trial Court for the proceedings. The same was allowed. Hence, the present petition.

Counsel for the Petitioner submitted that the same Counsel representing the Respondents-defendants had put in appearance in other cases during the same time period in which he claimed to be undergoing an eye treatment as well as for surgery of cornea transplant and therefore the counsel for the Respondents cannot adopt a pick and choose method for representing the litigants. He further submitted that a counsel can easily make alternative arrangements so that the respondents-defendants are properly represented and therefore, it was the duty of the counsel for the respondents-defendants to make alternative arrangements for representing the respondents-defendants, or he could have asked his brother who was also having an experience of more than 20 years in the litigation and therefore, under these circumstances. He stressed that as it was the duty of the counsel to make such arrangements and that, he cannot be granted relaxation solely on the ground that his place of practice was distant.

The Court observed that the submission of the Counsel for the Petitioner that the reason assigned by the learned Trial Court while allowing the application filed by the Respondents under Order IX Rule 13 of CPC that it was on account of the health issues that it was not possible for the counsel for the respondents-defendants to appear for the proceedings, is not justified, inasmuch as the counsel for the Respondents-defendants has clearly submitted in his application that he was suffering from health issues, and therefore, it was rightly observed by the learned Trial Court that it was not practically possible for the counsel for the respondents-defendants to appear before the learned Trial Court, which was 70 km far from his place of practice during the proceedings, taking into account his medical condition.

The Court was of the view that the Respondents-defendants have shown sufficient cause preventing them from appearing before the court and the learned trial court after duly taking into consideration the reasons assigned, has set aside the ex-parte decree.

Regarding the contention that it was the duty of the Counsel to make alternative arrangements is concerned, the Court was of the view that merely because the Counsel representing the Respondents-defendants failed to make some alternative arrangement, the Respondents-defendants cannot be made to suffer for the same as it would not be in the interest of the justice. It cited Supreme Court's decision in Rafiq v. Munshilal wherein the Court has taken a view that a party cannot be made to suffer because of the inaction of his advocate.

The Petition was accordingly rejected.

Cause Title: Phoolaram vs. Bajranglal

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Rajasthan High CourtLawyerJustice Nupur Bhati

Sheetal Joon