A litigant cannot be penalized for any default or mistake on the part of the counsel.

JUDGMENT :

Ajay Bhanot, J.

1. The petition under Article 227 is directed against the order dated 12.12.2017 passed by the learned Civil Judge (Senior Division), Hamirpur in Misc. Case No.86/74 of 2009 (Smt.Kishori Devi Vs. Smt. Rajkumari) and the order dated 08.03.2019 passed by the learned District Judge, Hamirpur in Civil Revision No.03 of 2018 (Smt. Rajkumari and another Vs.Smt. Kishori Devi).

2. The application filed by the respondent No.3 under Order 9, Rule 13 of the Code of Civil Procedure for setting aside the ex parte judgement and decree entered by the learned trial court and the application for condonation of delay in aid thereof were allowed by the learned trial court by order dated 12.12.2017. The learned revisional court affirmed the order of the learned trial court in its order bearing date 08.03.2019.

3. Sri B. Malik, learned counsel assisted by Sri Amit Malik, learned counsel for the petitioners states that the cause shown by the respondent No.3 to set aside the judgement and decree of the trial court was not sufficient. The courts erred in law by allowing the application. The impugned orders are unsustainable in law. He relies on the judgement of the Hon'ble Gauhati High Court in the case of Smt. Rupa Gogoi and others Vs. Md. Abdul Aziz, reported at AIR 2019 Gauhati 21.

4. Sri Punit Kumar Gupta, learned counsel for the respondent No.3 supported the orders assailed in the instant writ petition. He contended that the learned courts found that the respondent No.3 was absent in the suit proceedings for valid reasons. There is no infirmity in the findings of fact returned in the orders impugned. Learned counsel for the respondent No.3 also submits that this Court cannot re-appraise the evidence while exercising powers under Article 227 of the Constitution of India. Learned counsel for the respondent No.3 relies on the judgements of the Hon'ble Supreme Court in the cases of The Secretary, Department of Horticulture, Chandigarh and Ors. Vs. Raghu Raj, reported at AIR 2009 SC 514, Rafiq and others Vs. Munshilal and others, reported at AIR 1981 SC 1400 and the judgement of this court in the case of Om Prakash Vs. IIIrd Additional District Judge, Rampur, reported at 2011 (1) AWC 42.

5. Heard learned counsel for the parties.

6. A suit instituted by the petitioners was registered as Suit No.193 of 2007 (Smt. Raj Kumari and another vs. Smt. Kishori Devi) before the learned Civil Judge (Senior Division), Hamirpur. The judgement and decree was entered by the learned trial court in the said suit on 25.10.2008. The judgement and decree were ex parte to the respondent No.3.

7. Being aggrieved, the respondent No.3 instituted an application under Order 9, Rule 13 of the Code of Civil Procedure for recall of the judgement and decree dated 25.10.2008 rendered by the trial court. The said application was accompanied by an application for condonation of delay filed under Section 5 of the Indian Limitation Act. The said applications were filed by the respondent No.3 on 09.09.2009.

8. The cause shown for the delay in the application under Section 5 of the Limitation Act in aid of the application under Order 9, Rule 13 of the Code of Civil Procedure was found to be good by both the learned trial court as well as learned revisional court. The delay condonation application was allowed by the courts.

The learned revisional court in its order dated 08.03.2019 found substance in the assertions of the respondent No.3 in her application under Order 9, Rule 13 of the Code of Civil Procedure. The learned revisional court found that the absence of respondent No.3 in her suit proceedings and failure to contest the same was on account of negligence of her counsel. The counsel had neglected to alert the respondent no.3 of the true state of facts and the status of the proceedings before the learned trial court. Lack of knowledge of correct facts and status of proceedings before the trial court caused her absence in the suit proceedings and prevented her from