1993 Supreme(MP) 594

R.D. Shukla, J.
Ramlal v. Arunadevi
C.Revn. No. 400 of 1992 (I); Decided on 24.9.1993

Headnote:(1) Civil P.C., 1908 -- O. 9 R. 13 -- setting aside of ex parte decree -- counsel neither informing not attending the case -- party cannot be penalised.

        (2) Practice Civil -- reader of the Court -- cannot fix date of hearing.

        ¼1½ flfoy Áfdz;k lafgrk] 1908 & vk- 9 fu-13 & ,di{kh; fMdzh vikLr fd;k tkuk & dkmUlsy }kjk u lwpuk vkSj u ekeys dh ns[kHkky & i{kdkj nafMr ugha fd;k tk ldrkA

        ¼2½ ÁFkk flfoy & U;k;ky; dk is"kdkj & lquokbZ dh rkjh[k fu;r ugha dj ldrkA

        On perusal of the order of the trial Court, following facts emerged out, which have not been disputed.

        The case was fixed for hearing on 9.1.92. The applicant had engaged a counsel for that. However, on the day, the presiding officer was not present and therefore reader posted the case on 12.3.92.

        Learned trial Judge proceeded ex parte on 12.3.92 and therefore ex parte decree was passed on 23.4.92.

        During the pendency of the case in Kotha, it was told to the non-applicant on 28.8.92 that a decree for restitution of conjugal rights has been passed against her. Non-applicant while filing application, has submitted an affidavit showing that she knew about the decree on 28.8.92.

        Held : It is not in dispute that the counsel for the non-applicant did not inform about his own non-appearance and therefore, it was but natural that the non-applicant may have believed that the case was being attended by the counsel.

        It is an established principal of law that the parties would not be compelled to suffer because of laches and negligence of the lawyer.

        Reference may be had to a case reported in 1993 SC Page 1182

        Learned counsel for the applicant has submitted on the basis of a case reported in 1993 unreported judgment, that there is nothing like ex parte order; it is an ex parte decree that has to be taken into consideration.

        From the facts stated above, the date 12.3.92 fixed by the reader cannot be taken to be the date for hearing, and therefore no ex parte order could be passed on that date.

        It is not in dispute that the counsel for the non-applicant has given no information to her regarding her non-appearance in the case.

        In such a situation there is nothing to disbelieve the contention of the non-applicant that she had received information about ex parte order on 28.8.92 and the same has been rightly accepted by the trial Court.

        From the discussions above, it cannot be said that the finding of the trial Court is perverse.

        This Court finds no jurisdictional error in the matter. AIR 1993 SC 1182 followed. Revision dismissed.