Smt. Nisha vs Shamshulhaq
2021 Latest Caselaw 429 MP

     HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
                       JABALPUR

Case No.                            M.P. No.3911/2018
Parties Name                                         Smt. Nisha.
                                                         vs.
                                                    Shamshulhaq.
Date of order                          03/03/2021
Bench Constituted                  Single Bench : Justice Sujoy Paul
Order passed by                    Justice Sujoy Paul
Whether approved for reporting No.
Name of counsel for parties        For Petitioner: Shri Sanjay Sarwate,
                                   Advocate.
                                   For Respondent: Shri Abdul Waheed

Choudhary.

Law laid down                                           -
Significant paragraph numbers                           -

                                 (O R D E R)
                                  03 .03.2021

This Misc. Petition has been filed by the petitioner/defendant under Article 227 of the Constitution of India against the orders dated 7.5.2018 (Annexure P-6) and 22.6.2018 (Annexure P-9).

2. The respondent filed a suit for eviction based on various grounds mentioned in Section 12 of the M.P. Accommodation Control Act, 1961. The suit was dismissed by the judgment and decree dated 10.4.2015 (Annexure P-

1). The plaintiff feeling aggrieved with the said judgment and decree assailed it in an appeal, which was allowed by the judgment and decree dated 10.4.2017. The matter was remitted back on a limited point to the trial Court and the plaintiff was permitted to adduce additional evidence in respect of rent agreement 'Kiraya-nama'.

3. After remand, the plaintiff adduced evidence on 6.5.2017 and thereafter the matter was fixed for defendant's evidence. Since the counsel for the defendant remained absent on more than one occasion, the trial Court

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proceeded ex-parte on 11.7.2017 against the petitioner/defendant and thereafter passed the judgment and decree against the petitioner on 23.10.2017.

4. Petitioner filed an application under Order 9 Rule 13 of CPC along with an application under Section 5 of the Limitation Act (Annexure P-4) for setting aside the ex-parte decree. In turn, the respondent/plaintiff filed his reply (Annexure P-5). The trial Court by order dated 7.5.2018 rejected the application for condonation of delay. As a consequence thereof the application filed under Order 9 Rule 13 of CPC was also dismissed. Aggrieved, petitioner filed Misc. Appeal under Order 43 Rule 1 of CPC (Annexure P-7). Reply thereof filed by other side is Annexure P-8. The appellate Court by order dated 22.6.2018 (Annexure P-9) dismissed the Misc. Appeal. These orders dated 7.5.2018 (Annexure P-6) and 22.6.2018 (Annexure P-9) are called in question in this writ petition filed under Article 227 of the Constitution of India.

5. Shri Sanjay Sarwate, learned counsel for the petitioner raised two fold submissions:-

(i) Petitioner/defendant participated in the proceedings before the trial Court on various dates. However, because of negligence of counsel for the defendant, he remained absent on certain dates. Petitioner/defendant was not aware about this development and dates. He cannot be made to suffer for a mistake committed by his lawyer. Reliance is placed on 1981 AIR ((SC) 1400 (Rafiq Vs. Munshilal).

(ii) Both the courts below declined to condone the delay by holding that each day's delay needs to be explained, which has not been explained. Hence the delay cannot be condoned. This finding of the courts below runs contrary to the judgment of the Supreme Court passed in Civil Appeal Nos.2599-2600 of 2018 (Ummer Vs. Pottengal Subida & others). This order is followed by this Court in SA No.1066/2015 (Chandra Kumar Vs. Prahlad Kumar).

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6. In nutshell, learned counsel for the petitioner submits that the delay was also not enormous. The delay was properly explained. The courts below have passed the impugned orders by applying incorrect parameters.

7. Per contra, Shri Abdul Waheed Choudhary, learned counsel for the respondent supported the impugned orders. By taking this Court to the order sheets of the trial Court Shri Choudhary urged that the defendant remained absent on various dates. In view of the conduct of the defendant whereby he adopted dilatory tactics, no interference may be made in the present case. The petitioner had full knowledge about the proceedings and entered appearance through his counsel, he cannot be permitted to take a different stand that he was not aware about the proceedings. He has also placed reliance on Article 123 of the Limitation Act in support of his submissions.

8. Parties have confined their arguments to the extent indicated above.

9. I have heard the learned counsel for the parties at length and perused the record.

10. Undisputedly, the petitioner remained absent on more than one occasion before the trial Court. The court below proceeded ex-parte against the petitioner and then heard and decided the matter on merits. The petitioner alleged that he came to know about the judgment and decree of the trial Court only on receiving the notice on 5.3.2018 issued in the execution proceedings. With quite promptitude, the petitioner obtained certified copy of the judgment and decree and preferred an application under Order 9 Rule 13 of CPC on 8.3.2018. Neither delay is enormous nor it is unexplained or unjustifiable. The trial Court has rejected it by holding that the petitioner has not explained each day's delay. In addition, it is opined that the explanation given by the petitioner that she gathered knowledge of ex-parte decree on 5.3.2018 only, does not appear to be bonafide, sufficient and justifiable.

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11. In the opinion of this Court, in support of this conclusion that explanation was not bonafide, justifiable and sufficient, sadly, the trial Court has not assigned a single reason. In other words, it is not spelt out as to why the reasons furnished by the petitioner did not suit the trial Court. The conclusion must be based on cogent reasons. The reasons are heart beat of conclusion. In absence of reasons, the conclusion cannot sustain judicial scrutiny. For this reason, the impugned orders cannot sustain judicial scrutiny. Interference is warranted on both the orders for yet another reason. It is common reason assigned by the both courts for not entertaining the application for condonation of delay by holding that each day's delay has not been explained. This finding of both the courts below runs contrary to the judgment of the Supreme Court in the case of Ummer (supra). In the said case it was held as under:-

"One cannot now dispute the legal proposition that the earlier view of this Court that the appellant was required to explain the delay of each day till the date of filing the appeal has since been diluted by the later decisions of this Court and is, therefore, held as no longer good law."

The said principle was followed by this Court in the case of Chandra Kumar (supra).

12. Apart from this, the judgment of the Supreme Court in the case of Rafiq (supra) is consistently followed by the Supreme Court and by this Court. It is apposite to quote certain judgments in this respect:-

Mithanlal v. Labour Commr., 1987 Supp SCC 636-

"1. The sole point urged in this special leave petition is that the petitioner was not given a hearing and the High Court proceeded ex parte in the absence of his counsel and quashed the order of the Labour Court directing his reinstatement. We are afraid, the petitioner is not right in contending that the judgment of the High Court was ex parte since he had appeared through counsel and also filed his return. Unfortunately, it seems that the petitioner was not represented by his counsel at the hearing before the learned Single Judge (Talwar, J.). For whatever reason the advocate might have absented

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himself at the hearing, the fact remains that the petitioner was not heard by the learned Single Judge. In somewhat similar circumstances this Court in Rafiq v. Munshilal directed the rehearing of a writ petition.

2. We accordingly grant leave, set aside the judgment of the High Court and remit the writ petition for disposal afresh after notice to the parties. The High Court will try to dispose of the case as early as possible. There will be stay of reinstatement in the meanwhile."

Deptt. of Horticulture v. Raghu Raj, (2008) 13 SCC 395 {Rafiq v. Munshilal, relied on }-

"23. Now, it cannot be gainsaid that an advocate has no right to remain absent from the court when the case of his client comes up for hearing. He is duty-bound to attend the case in court or to make an alternative arrangement. Non-appearance in court without "sufficient cause" cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the court and can never be countenanced.

24. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non- appearance of the advocate."

Sohanlalarya v. State of Madhya Pradesh 2019 SCC OnLine MP 3268 (Before Vishal Mishra, J.)

"5. It is settled law that the Hon'ble Supreme Court in the case of Rafiq v. Munshilal reported as AIR 1981 SC 1400 wherein, the Hon'ble Court has held as under:

"Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who, as per the present adversary legal system, has selected his advocate, briefed him and paid him fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanor of his counsel".

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6.......

7. Considering the aforesaid judgment passed by Hon'ble Supreme Court wherein, it is categorically held that for the fault of counsel, a party should not be made to suffer. Therefore, this court deems it fit to allow the MCC."

(emphasis supplied)

13. In view of these judgments, I find force in the argument of Shri Sarvate, learned counsel for the petitioner that for the mistake of counsel, the petitioner who has otherwise shown his bonafides cannot be made to suffer.

14. Resultantly, the impugned orders dated 7.5.2018 (Annexure P-

6) and 22.6.2018 (Annexure P-9) are set aside. The application filed under Section 5 of the Limitation Act for condonation of delay and the application filed under Order 9 Rule 13 of CPC are allowed. The ex-parte judgment and decree dated 23.10.2017 is set aside and the matter is restored to the file of the trial Court to decide the Civil Suit No.32-A/2014 afresh from the stage the court proceeded ex-parte against the petitioner/ defendant.

15. Misc. petition stands allowed. No cost.

(Sujoy Paul) Judge

Ansari

MANJOOR AHMED 2021.03.04 15:24:50 +05'30'