The refusal of notice by the defendant's counsel constituted sufficient service, and the court's use of Section 151 CPC to grant relief to the defendant was erroneous.

S. K. KESHOTE, J.

( 1 ) THIS revision petition under Section 115 CPC is directed by the plaintiff petitioners against the order dated 16-11-2000 of the Civil Judge (Junior Division), bharatpur in Civil Suit No. 34/1990. Under this order the learned trial Court has granted the application filed by the defendant non-petitioner under Order 9, Rule 7 CPC. Parties hereinafter referred as the plaintiff and defendant.

( 2 ) THE facts of the case in brief are that the suit for permanent injunction was filed by late Laxman Singh, predecessor-in-title of the petitioners against the defendant non-petitioner. The suit was fixed for plaintiffs evidence on 10-5-1999. As on that date both the parties nor their Counsel were present, the suit was dismissed in default. The application filed by the plaintiff under Order 9, Rule 9 of the cpc was granted and the suit was ordered to a restored to its original number.

( 3 ) IT is not in dispute that the notices with copy of this application of the plaintiff was sent to the Counsel of the defendant. That is not sent for personal service upon the defendant. The Counsel had refused to take the notice on the ground that he had left this brief long back. Another Counsel has been engaged by the defendant. This refusal of the notices by the counsel was taken to be sufficient service of the defendant and the application aforestated has been granted. Not only that application of the plaintiff was allowed, but for non-appearance of the defendant or his counsel, the court has ordered to proceed ex parte against him.

( 4 ) THE defendant on 13-8-1999 filed application under Order 9, Rule 7 CPC and the prayer has been made therein for setting aside of the order dated 2-6-1999. This application came to be allowed under the impugned order. Hence this application.

( 5 ) SHRI Mandhana, learned Counsel for the plaintiffs contended that Shri Gopal Ram gupta, was the counsel for the defendant and as per the provisions contained under Order 3, Rule 4 (2) of the CPC a notice of that application for restoration of suit has rightly been ordered to be issued to him. He refused to accept the notice and the trial Court has rightly taken it to be sufficient service. It has next been contended that the learned trial Court has not awarded costs in favour of the plaintiff. Lastly, it is urged that the evidence of the plaitniff was recorded on 21-7-1999 and 6-8-1999 and the arguments in the suit were heard on 9-8-1999 and the case was posted for judgment on 11-8-1999. In this factual background what it is contended that the application filed by the defendant under Order 9, Rule 7 of the cpc was not maintainable.

( 6 ) SHRI S. K. Gupta, learned Counsel for the defendant in contra submitted that the learned trial Court has passed a just and reasonable order in which this court may not interfere with under Section 115 of the cpc. It is next contended that Shri Gopal Ram gupta, had not remianed Advocate in the suit of the defendant. In a case where the advocate has refused to take the notice of the application in all the fairness and to do substantial justice to the parties, the court instead of relying on the service on refusal of the notice should have sent the same to the defendant. In case the matters are permitted to be decided in this way and manner, it will result in causing serious injustice and irreparable injury to the defendant. The advocate has given out the reasons not to accept the notices and in the matter the court should have adopted an approach to do substantial justice. This conservative view taken by the court below is not porper and reasonable. Carrying this contention further the learned Counsel for the defendant submitted that for this conduct of the advocate the litigant should not be permitted to suffer. Lastly, it is contended that in the trial court the application of defendant was not opposed on the ground that the suit is reached at the stage of pronouncement of the judment.

( 7 ) I have give