The main legal point established in the judgment is that amended provisions regarding adjournment would not be applicable to a suit instituted prior to the amendment. Additionally, the absence of the counsel, if due to unforeseen emergency, should not be deemed as default on the part of the litigant.

S. N. Srivastava, J.—Petition in hand has been filed assailing the order dated 25.3.2003, passed by Civil Judge (J.D.) City Varanasi in Suit No. 1203 of 1997.

2. It would appear that by means of order dated 20.5.2003, application filed by the petitioner seeking adjournment was rejected and evidence was ordered to be closed. Thereafter, application filed for recall of that order also came to be rejected by means of order dated 1.11.2003. Revision preferred against the said order was also dismissed.

3. I have heard learned counsel for the parties and perused the impugned orders. It would transpire that evidence of the petitioner was closed on the ground that the petitioner was disentitled to adjournment in view of the amended provision. It is evident from the record, that statement of one of the witnesses was recorded and the matter was fixed for cross-examination and statements of other witnesses. It would further appear that on the date fixed, counsel for the petitioner had not attended the Court and therefore, application for adjournment was moved. In connection with it, learned counsel for the petitioner submitted that the provisions of amended provisions are not intended for application to a suit instituted prior to amendment. In the instant case, the suit came to be instituted in the year 1997 while the amendment was brought about with effect from the year 2002 and therefore, proceeds the submission, impugned order of rejection of application for adjournment and closure of evidence of the petitioner was impaired. Per contra, learned counsel for the opposite parties vehemently lent support to the impugned order arguing that the amended provisions pertain to the matter of procedure and thus would be applicable to the present case.

4. In the perspective of the above controversy, I feel called the say that the matter whether amended provisions would be applicable to a suit instituted prior to the amendment, stands clinched by two decisions of the Court firstly, the decision in Waqf Mausooma Syed Husain v. Dilip Kumar Jain, 2003 (5) AWC 3494 : 2003 ALR 424. The quintessence of the view taken by the Court converging to the conclusion that the amendment would be prospective and not retrospective is that "an amendment in the law of procedure would ordinarily be retrospective but that is only a presumption and where a construction giving retrospectivity to a provision is textually inadmissible it would have to be taken that the provision is prospectivity in operation." Reference in this connection was made to the decision in Delhi Clothes and General Mill Company Ltd. v. I.T. Commissioner, AIR 1927 PC 242 and Jose Decosta v. Basora Sadashiv, AIR 1975 SC 1843.

5. Yet another aspect is whether on account of non-appearance of the counsel for the petitioner, the petitioner could be held to have committed default. It would appear that default if any was on account of absence of the counsel. In this connection, I feel called to observe that a litigant engages a counsel and entrusts him with the brief and all requisite papers in order to represent him in a judicial court. The question is if counsel absents himself on account of some unforeseen emergency and is not able to represent his client, would it be deemed to be a default on the part of litigant himself. An advocate means one who assists his client with advice and pleading for him. From a perusal of the material on record, it transpires that counsel for the petitioner was busy at home due to personal reason and could not attend the Court. It would thus appear that cause was shown which as contained in the application was sufficient for adjourning the case and the trial court wrongly and illegally rejected the same. To cap it all, the function of the Court is to advance the cause of justice. In my view, the Court should not act with rigidity in such matter unless it is of the conclusion on valid reason and grounds that non-appearance was with a specific purpose to a design, i