Negligence of counsel does not excuse a party from the consequences of failing to participate in legal proceedings, emphasizing accountability in legal representation.

JUDGMENT :

1. Heard Mr. A.K. Gupta, the learned counsel appearing on behalf of the petitioner. Ms. D.D. Barman, the learned Additional Senior Government Advocate appears on behalf of the respondents.

2. This is an application filed under Section 115 of the Code of Civil Procedure, 1908 (for short, “the Code”) challenging the judgment and order dated 16.03.2013 passed by the learned Civil Judge, Darrang at Mangaldoi (hereinafter referred to as, “the learned First Appellate Court”) in Misc Appeal No. 08/2009 whereby the appeal filed under Order XLIII Rule 1 (d) read with Section 104 of the Code was dismissed.

3. From the materials on record, it is seen that the respondents herein had filed the suit before the Court of the learned Munsiff No. 1, Darrang at Mangaldoi (hereinafter referred to as, “the learned Trial Court”) which was registered and numbered as Title Suit No. 8/1995. In the said suit, the petitioner herein was the defendant No. 1. It is further seen that in the said suit written statement was filed by the defendants. However, nobody appeared on behalf of the defendants, for which, the suit proceeded ex-parte and vide the judgment and decree dated 08.07.1996, the said suit was decreed in favour of the plaintiffs.

4. The petitioner/defendant No. 1 on coming to learn about the said judgment and decree dated 08.07.1996 filed an application under Order IX Rule 13 of the Code which was registered and numbered as Misc (J) Case No. 08/2008. It is the case of the petitioner/the defendant No. 1 in the said application that they have never received any summons in respect to the said suit and the written statement was filed on behalf of the petitioner/the defendant No. 1 by a certain person impersonating the defendant No. 1. On the ground that the summons were not served upon the defendant No. 1 and they only came to learn on 14.05.2008 from one Abu Sama, son of Late Ramjan Ali that there was some ex-parte decree passed on 08.07.1996, the petitioner/the defendant No. 1 made inquiry and could obtain the copy of the plaint, written statement as well as the judgment and thereupon filed the said application under Order IX Rule 13 of the Code.

5. It is further seen that the respondents herein who were the plaintiffs filed a written objection to the said application filed under Order IX Rule 13 of the Code stating inter alia that the petitioner/the defendant No. 1 had due notice about the suit as well as the date of hearing. Further to that, it was also stated that it did not constitute a sufficient cause for non-participation on the date of hearing.

6. It is however seen from the impugned order dated 04.05.2009 passed by the learned Trial Court in Misc(J) Case number 08/2008 that the petitioner/the defendant No. 1 was afforded opportunity to adduce evidence as regards, the fact that the written statement was not filed on their behalf. However, in spite of opportunities being granted, the learned counsel on behalf of the defendant No. 1/the petitioner did not appear and it is under such circumstances, the order dated 04.05.2009 was passed thereby rejecting the application under Order IX Rule 13 of the Code.

7. It is further seen that pursuant thereto, the defendant No. 1/the petitioner being aggrieved preferred an appeal before the Court of the learned First Appellate Court which was registered as Misc. Appeal No. 08/2009 challenging the order dated 04.05.2009 passed in Misc (J) Case No. 08/2008 and the learned First Appellate Court vide the impugned order dated 16.03.2013 had dismissed the said appeal primarily on the ground that in spite of various opportunities being granted to the petitioner/the defendant No. 1, they did not take steps for proving that the written statement was not filed on their behalf and as they failed to discharge their burden and as such, the learned Trial Court was justified in passing the order dated 04.05.2009.

8. In the backdrop of the above, this Court has heard the learned counsels appearing on behalf of the pe