Shri Sultan Singh (Since Deceased ... vs Mrs. Raj Rani And Another
2001 Latest Caselaw 759 Del

ORDER

Vikramjit Sen, J.

1. It is the contention of the tenant, who has filed this petition under Article 227 of the Constitution that the Additional Rent Controller had committed a procedural impropriety in dismissing his application under order IX Rule 13 of the Civil Procedure Code (hereinafter referred to as CPC) for setting aside an eviction order passed on 19.2.1999 ex parte the tenant. Although it is contended that an ex parte eviction order had been passed, it is necessary to immediately mention that the Tenant, later Shri Sultan singh had been duly represented by his Advocate till such time as the latter stopped appearing in the case. In the Written Statement it had been pleaded inter alia that the petition was not maintainable as the premises in dispute was taken on rent by shri Sultan Singh and his son Jatinder Kumar who were joint tenants. The Respondent was proceeded ex parte on 22.1.1997 and he expired on 23.8.1999, that is six months ater the eviction orders had been passed. The case set out in the application under order IX Rule 13 C.P.C. is that the applicant Jitender Kumar Jain is one of the legal heirs of the deceased, and he went to Shri C.P. wig on or about 17.9.1998 (sic) to enquire about pending cases in various Courts. It was then that he was told of the withdrawal of the vakalatnama and he immediately contacted his friend who was also an Advocate. After an inspectio of the Court file the application under order IX Rule 13 was filed. I have heard Shri Diwan, Learned Counsel for the Petitioner, but am unable to find any merit in the appeal, for the following reason:--

(1) Order VI Rule 4 C.P.C. clarifies that the appointment of an Advocate shall remain in force until determined with the leave of the court by a writing signed either by the client or the pleader. In the former case the determination is on the request of the party itself. In the latter, if the Advocate seeks to withdraw from the case, under the High Court Rules and Orders he must first convey his intention in writing to the client and only thereafter can he be granted permission. As I see it, this requirement is intended to ensure that the client is formally aware of the proceedings, and a court notice to him need not be essential. He can reasonably be expected to be present on the date indicated in the Advocate's letter. Till the Advocate is discharged by the court, he remains the party's agent in every respect. Neither on 19.8.1998 nor on the next date of 26.10.1998, was the reqest for withdrawal of the vakalatnama accepted by the court, and in my view correctly so. The fact that the court, and in may view correctly so. The fact that the court also ordered the issuance of a court notice to the tenant does not tantamount either to the cessation of duty of the Advocate to represent him or create a right in equity or in its handmaid/procedural law, to insist that the notice should formally be served. Two efforts to serve the tenant were avoided/remained futile. If a party remains unresponsive to communications sent both by the court and his Advocate, he has only himself to blame. It may be highlighted that Mr. Diwan had submitted before me that both the father (the Respondent) and son (the Applicant) were transacting their business from the demised premises. No grounds for recalling the ex parte orders on this ground are made out. Both the Advocate as well as the tenant should have been present.

(2) An application unser Order IX Rule 13 of the CPC must be moved within thirty days of the passing of the decree. This period expired during the lifetime of the father. The application has been filed by the son, if a legal heir, inherited nothing.

(3) It was the tenant/father's case in the Written statement that he along with his son ae joint tenants. Enen at the inception of the petition the present applicant was a mature businessman of thirty years. It can safely be assumend that he was aware of the proceedings. He could have approached the court for impleadment, but did not do so. In the application he has stated that some receipts were issued jointly in his favor. I find it wholly incredible that he was unaware of the pending of the eviction proceeding and thus sufficient cause is wholly absent. While the court may excuse an illiterte villager from neglecting to follow up an ddiligently prosecute his case, this reprieve ought not not be extended to a urban businessman. The reality in such cases is that every delaying device is deployed by such litigants. In this case, the father/tenant actually arrayed as the Respondent, is alleged to have been aged and infirm. Can the Court be expected to be so naive as to accept that the adult businessman son, who has alledged that he is a joint tenant, did not assume the responsibility of the litigation.

(4) In the application it has been stated as follows:

"That the counsel for the respondent never informed the respondent about the progress of the case and more specifically never intimated to the respondent of the intention of the counsel for withdrawing the power of attorney from the present case form the court. As per the High Court Rules, the counsel should have informed the Respondent by Registered AD post about her intentions of withdrawing Vakalatnama. By not doing so, great prejudice has been coused to the applicat."

2. However, liberally and favorable this paragraph may be read, it leads only to the conclusion that the son/applicant was fully aware of the litigation, since these are his averments and not of his deceased father, and are true to the former's knowledge.

3. The rights of the Petitioner/landlord should not be thrown to the winds. He has laboured hard for winning a decree, which should be sustained in the face of a cavalier request to set it aside on so-called equitable grounds put forward by a negligent if not a dishonest Respondent/applicant./

The Petition is dismissed.