In CR-4236-2019 (O&M)-PUNJ HC- Party can’t be made to suffer for counsel’s fault, opines P&H HC while restoring defendant’s application for setting aside Trial Court’s ex-parte decision passed against him for non-appearance of his counsel Justice Alka Sarin[07-04-2022]

Read Order: Krishan v. Santraj and Others 

Monika Rahar

Chandigarh, April 8, 2022: While dealing with a civil revision petition impugning two orders of the lower courts dismissing an application filed by the defendant-petitioner for setting aside an ex-parte order passed against him for the non-appearance of his counsel as also an application filed for restoration of the first application, the Punjab and Haryana High Court has held that the defendant-petitioner duly appointed a counsel who did not appear and thus defendant-petitioner cannot be made to suffer for the fault of the counsel. 

The Bench of Justice Alka Sarin further expounded, 

“Neither any malafide nor any negligence can be imputed to the defendant-petitioner when his counsel did not appear (…) Procedure is meant for advancement of justice and not to scuttle justice. If a litigant in his right earnest had engaged a counsel, his expectation always would be that his lawyer would give the best and would represent him on each and every date of hearing.”

Before the Court, it was the petitioner’s grievance (defendant in original suit) that he and the third proforma respondent (herein) were proceeded against ex parte and ex parte judgment and decree in a suit for specific performance came to be passed against them. 

Thereafter, the petitioner-defendant filed an application (first application) for setting aside the ex parte order as well as judgment and decree on the ground that the defendants earlier engaged a counsel who appeared and filed the written statement but did not appear thereafter and that great prejudice was caused to their rights. 

The said application was also dismissed in default due to the non-appearance of the defendant- petitioner. Again, an application (the second application) was filed for restoration of the first application. The second application was also dismissed by the Trial Court vide impugned order. The appeal by the defendant-petitioner against the said order was also dismissed by the Appellate Court. Hence, the High Court was approached with a civil revision petition filed under Article 227 of the Constitution of India for setting aside these impugned orders (order of the Trial Court and that of the Appellate Court). 

The Counsel for the defendant-petitioner contended that the defendant-petitioner had, on both occasions, engaged a counsel to appear in the matter. However, the counsel could not appear and as a result, the petitioner’s first application was dismissed in default by the Trial Court for no fault of the defendant-petitioner. Thereafter, the second application filed for restoration of the first application for setting aside the ex parte order as well as judgment and decree was dismissed by both the Courts below on illegal and erroneous grounds. 

The Counsel further contended that there was no willful default on the part of the defendant-petitioner and, hence he sought an opportunity to argue on his first application. The counsel placed reliance upon the decisions in Tahil Ram Issardas Sadarangani vs. Ramchand Issardas Sadarangani and Harjinder Singh vs. Kirpal Singh to contend that a party should not be made to suffer for lapse of his counsel.  

Per contra, the counsel for the first and the second respondents contended that sufficient opportunities were granted and the petitioner intentionally did not appear in order to delay the proceedings. The counsel also argued that the defendant-petitioner filed another application under Order 9 Rule 13 CPC which was later withdrawn by him thus showing that the sole aim was to delay the proceedings.

On perusal of the record, the Court opined that though a counsel was engaged by the defendant-petitioner in the matter, however, the counsel did not appear in the Trial Court thus leading to the dismissal in default of the petitioner’s application for setting aside the ex parte order as well as judgment and decree. 

The Court further added that the defendant-petitioner cannot be made to suffer for the fault of the counsel. The Court also asserted that neither any malafide nor any negligence can be imputed to the defendant-petitioner when his counsel did not appear before the Trial Court. 

Elaboration on this assertion, the Court stated that procedure is meant for the advancement of justice and not to scuttle justice and thus if a litigant in his right earnest had engaged a counsel, his expectation always would be that his lawyer would give the best and would represent him on each and every date of hearing. 

“If the lawyer of the defendant-petitioner was not present on 14.10.2016 [when ex-parte order was passed against the petitioner] and an adverse order has been passed then the defendant-petitioner should not suffer”, held Justice Sarin. 

Thus, against this background, the Court while allowing the present revision petition, set aside the impugned orders. As a corollary, the order of the Trial Court dismissing in default the first application filed by the petitioner for setting aside the ex parte order as well as judgment and decree was also set aside. The application filed by the petitioner was ordered to be restored and the same was directed to be heard and decided by the Trial Court on merits.  
Since the matter was pending since 2011, the Trial Court was requested to expedite the hearing of the application for setting aside the ex parte order.