Order On Board

22/11/2022

1. This petition has been preferred against the order dated

31.3.2018 passed by the Additional District Judge, Sarangarh, District Raigarh in Misc. Civil Appeal No.2/2017, whereby, the appeal preferred against the order dated 4.3.2017, dismissing the application 昀椀led by defendant No.1 under Order 9 Rule 13 read with Section 151 of CPC for setting aside the ex-parte decree dated 13.3.2013 (in Civil Suit No.44A/11), passed by the Civil Judge, Class-I, Sarangarh District Raigarh (CG) in Misc. Civil Case No.2/2013, has been dismissed and thereby, the order dated 4.3.2017 has been a昀케rmed

2. Learned counsel for the petitioner would submit that, the respondent/plainti昀昀 had instituted Civil Suit No.44A/2011 for declaration of tile and vacant possession against the petitioner/defendant. He submits that on the date of hearing of the suit i.e. 24.9.2012, Counsel for the petitioner/defendant pleaded no instructions before the concerned Court and therefore, the Court proceeded ex- parte and passed the judgment on 13.3.2013. The said ex- parte proceedings have been challanged by way of appeal, which was dismissed by the impugned order dated 31.3.2018. He submits that both the Courts below have ignored the fact that the petitioner/defendant had duly engaged a counsel for protecting his rights and was also participating in the proceedings but on the date of the hearing, the Counsel pleaded no instructions in the matter since he could not contact the defendant. He further submits that the parties cannot be penalized for the fault of the Advocate. Learned counsel places reliance on the judgment rendered by this Court in the matter of Laxmi Prasad Vs. Gulam Ali and others, 2008 (1) C.G.L.J. 393. In the said matter, this Court relied on the judgment passed by Hon'ble the Supreme Court rendered in the matter of Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, AIR 1993 SC 1182, wherein, the procedure to be followed when a counsel pleads no instructions, has been laid down. In the instant case, such procedure has not been followed, therefore, the impugned order passed by the Court below is not sustainable. He prays to allow the petition and quash the impugned order.

3. On the other hand, learned counsel for the plainti昀昀s/respondents supports the impugned order and submits that it is well-merited and does not call for any interference.

4. In Tahil Ram Issardas Sadaragani (supra), it was held by the Apex Court that where the defendants were not present in person on the date of hearing and the counsel appearing for them had pleaded no instructions, interest of justice required that a fresh notice with actual date of appearance should have been sent to the parties because the party was not at fault and should not be made to su昀昀er for the lapse on the part of counsel. On this premises, the Apex Court allowed the appeal and set-aside the order of a Division Bench of the High Court of Bombay, whereby, the dismissal of the application for setting aside the ex parte decree by the trial Court was upheld.

5. Taking into consideration the aforesaid principle laid down by the Supreme Court, it is quite vivid that in the present case also, such procedure has not been followed by the trial Court and only on the basis of pleading of no instructions by the Counsel, proceeded ex-parte against the defendant. Hence, the approach of the trial Court is not proper and sustainable.

6. Accordingly, the impugned order dated 31.3.2018 passed in Misc. Civil Appeal No.2/2017 by the Additional District Judge, Sarangarh, District Raigarh (CG) as also the judgment dated 13.3.2013 passed by the Civil Judge Class- I, Sarangarh, District Raigarh (CG) in Civil Suit No.44-A/2011 are set-aside and Civil Suit No.44-A/2011 is restored to its original number.

7. The parties are directed to remain present before the trial Court on 15.12.2022. The ex-parte proceedings drawn against the petitioner/defendant is set-aside. The trial