The defendant-petitioner cannot be made to suffer for the fault of the counsel, and the procedure is meant for the advancement of justice.

JUDGMENT :

Alka Sarin, J.

The present civil revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 23.05.2019 (Annexure P-8) and order dated 16.01.2019 (Annexure P-7), whereby the application (Annexure P-6) for restoration of the application for setting aside the ex-parte order dated 12.02.2014 as well as ex-parte judgment and decree dated 25.03.2014 has been dismissed.

2. Learned counsel for the defendant-petitioner would contend that the defendant-petitioner and proforma respondent No.3 herein, were proceeded against ex-parte and ex-parte judgment and decree in a suit for specific performance came to be passed against them on 25.03.2014 (Annexure P-3). Thereafter, on 24.05.2014 an application (Annexure P-4) was filed by the defendant-petitioner for setting aside the ex-parte order dated 12.02.2014 as well as judgment and decree dated 25.03.2014 on the ground that the defendants had earlier engaged a counsel who had appeared and filed the written statement, but had thereafter not appeared in the case and that great prejudice had been caused to their rights. The said application was also dismissed in default due to non-appearance of the defendant petitioner vide order dated 14.10.2016 (Annexure P-5). An application (Annexure P-6) was thereafter filed for restoration of the application for setting aside the ex-parte order dated 12.02.2014 as well as judgment and decree dated 25.03.2014. This application (Annexure P-6) was dismissed by the Trial Court vide impugned order dated 16.01.2019. The appeal by the defendant-petitioner against the said order dated 16.01.2019 was dismissed by the Appellate Court vide impugned order dated 23.05.2019. Hence, the present civil revision petition.

3. Learned counsel for defendant-petitioner would contend that the defendant-petitioner had, on both occasions, engaged a counsel to appear in the matter. However, the counsel could not appear on 14.10.2016 and his application (Annexure P-4) filed for setting aside the ex-parte order dated 12.02.2014 as well as judgment and decree dated 25.03.2014 was dismissed in default by the Trial Court for no fault of the defendant-petitioner. Thereafter, the application (Annexure P-6) filed by the defendant-petitioner for restoration of the application for setting aside the ex-parte order dated 12.02.2014 as well as judgment and decree dated 25.03.2014 has been dismissed by both the Courts below on illegal and erroneous grounds. He would further contend that there was no willful default on the part of the defendant-petitioner and, hence, an opportunity be granted to him to argue on his application (Annexure P-4) for setting aside the ex parte order dated 12.02.2014 as well as judgment and decree dated 25.03.2014. Learned counsel placed reliance upon the decisions in Tahil Ram Issardas Sadarangani vs. Ramchand Issardas Sadarangani [1993 Supp (3) SCC 256] and Harjinder Singh vs. Kirpal Singh [2000(2) RCR (Civil) 245] to contend that a party should not be made to suffer for lapse of his counsel.

4. Per contra, learned counsel for respondent Nos.1 and 2 has contended that sufficient opportunities were granted and the petitioner is intentionally not appearing in order to delay the proceedings. Learned counsel also argued that the defendant-petitioner had filed another application under Order 9 Rule 13 CPC which was later withdrawn by him which showed that the sole aim was to delay the proceedings.

5. I have heard learned counsel for the parties and perused the paper book.

6. In the present case, on perusal of the record, it appears that though a counsel had been engaged by the defendant-petitioner in the matter, however, the counsel did not appear in the Trial Court on 14.10.2016 and the application (Annexure P-4) for setting aside the ex parte order dated 12.02.2014 as well as judgment and decree dated 25.03.2014 was accordingly dismissed in default. The defendant-petitioner cannot be made to suffer for the fault