Kamal vs Smt. Rukmani @ Rukhmani And 20 ...
2022 Latest Caselaw 5816 MP

1                                                    CR No.120/2013




          IN THE HIGH COURT OF MADHYA PRADESH
                              AT INDORE
                               BEFORE

                 HON'BLE SHRI JUSTICE ANIL VERMA

                       ON THE 21st OF APRIL, 2022

                   CIVIL REVISION No. 120 of 2013

    Between:-
    KAMAL S/O SITARAM , AGED ABOUT 42 YEARS, OCCUPATION:
    AGRI. VILL. RAVERKHEDI, TEH. BADWAH (MADHYA PRADESH)
                                                    .....PETITIONER
    (BY SHRI Jitendra Verma Adv.)

    AND

    SMT. RUKMANI @ RUKHMANI AND 20 OTHERS W/O SHIVRAM ,
1. AGED ABOUT 45 YEARS, VILL. RAVERKHEDI, TEH. BADWAH
    (MADHYA PRADESH)
    CHHAJJU S/O BHOLU VILL-RAVERKHEDI, TEH-BADWAH DISTT-
2.
    KHARGONE (MADHYA PRADESH)
    LAXMAN S/O SITARAM VILL-RAVERKHEDI, TEH-BADWAH DISTT-
3.
    KHARGONE (MADHYA PRADESH)
    LAXMAN S/O SITARAM VILL-RAVERKHEDI, TEH-BADWAH DISTT-
4.
    KHARGONE (MADHYA PRADESH)
    BHAGWAN S/O SITARAM VILL-RAVERKHEDI, TEH-BADWAH
5.
    DISTT-KHARGONE (MADHYA PRADESH)
    GANGABAI W/O LATE SITARAM VILL-RAVERKHEDI, TEH-
6.
    BADWAH DISTT-KHARGONE (MADHYA PRADESH)
    KADWIBAI D/O SITARAM VILL-RAVERKHEDI, TEH-BADWAH
7.
    DISTT-KHARGONE (MADHYA PRADESH)
    MITHIBAI D/O SITARAM VILL-RAVERKHEDI, TEH-BADWAH
8.
    DISTT-KHARGONE (MADHYA PRADESH)
    GOPAL S/O BABU VILL-RAVERKHEDI, TEH-BADWAH DISTT-
9.
    KHARGONE (MADHYA PRADESH)
    DEVRAM S/O BABU VILL-RAVERKHEDI, TEH-BADWAH DISTT-
10.
    KHARGONE (MADHYA PRADESH)
    RAMJI S/O BABU VILL-RAVERKHEDI, TEH-BADWAH DISTT-
11.
    KHARGONE (MADHYA PRADESH)
 2                                                             CR No.120/2013




      AMAR SINGH S/O BABU VILL-RAVERKHEDI, TEH-BADWAH DISTT-
12.
      KHARGONE (MADHYA PRADESH)
      RAMKUNWAR D/O BABU VILL-RAVERKHEDI, TEH-BADWAH
13.
      DISTT-KHARGONE (MADHYA PRADESH)
      SUMAN D/O BABU VILL-RAVERKHEDI, TEH-BADWAH DISTT-
14.
      KHARGONE (MADHYA PRADESH)
      GULAB W/O LATE BABU VILL-RAVERKHEDI, TEH-BADWAH DISTT-
15.
      KHARGONE (MADHYA PRADESH)
      GABRU S/O BOKHAR VILL-RAVERKHEDI, TEH-BADWAH DISTT-
16.
      KHARGONE (MADHYA PRADESH)
      KALLU S/O BOKHAR VILL-RAVERKHEDI, TEH-BADWAH DISTT-
17.
      KHARGONE (MADHYA PRADESH)
      BHAIRAM S/O BOKHAR PIPALPATI, TEH-BADWAH, DISTT-
18.
      KHARGONE (MADHYA PRADESH)
      SIKAR S/O BOKHAR VILL-RAVERKHEDI, TEH-BADWAH DISTT-
19.
      KHARGONE (MADHYA PRADESH)
      GYANU D/O BOKHAR VILL-RAVERKHEDI, TEH-BADWAH DISTT-
20.
      KHARGONE (MADHYA PRADESH)
      STATE OF M.P. THROUGH COLLECTOR DISTT-KHARGONE
21.
      (MADHYA PRADESH)
                                                           .....RESPONDENTS
      (None for respondent No.1 )
      (Shri Rajesh Joshi, GA for respondent No.21/State)
         This revision coming on for orders this day, the court passed the

following:

         None for respondent No.1, despite notice has been served.

         Service of notice on respondents No.2 to 20 has been dispensed

with vide order dated 16.9.2014.

         Counsel for the petitioner heard finally.
 3                                                           CR No.120/2013




                               ORDER

1/ Petitioner has filed this revision under Section 115 of the Code of Civil Procedure, 1908 (in short "CPC") being aggrieved by the impugned order dated 6.3.2013 passed by the Addl. District Judge, Badwah, District Khargone, whereby ex parte judgment and decree dated 1.5.2008 passed by the trial Court has been set aside and the matter has been remanded back to the trial Court for fresh hearing.

2/ Brief facts of the case are that petitioner/plaintiff has filed a civil suit for declaration and permanent injunction before the Civil Judge Class I, Sanawad, District West Nimar by stating that plaintiff is one of the co-owner of agricultural land bearing Survey No.11, 55, 288, 384, 416 & 4454 admeasuring 3.742, 3.120, 8.571, 0.020, 0.097 and 0.045 hectare respectively situated at village Raverikhedi, Tehsil Badwah, District Khargone. After service of the notice Shri Kailash Chouhan Advocate appeared, but he did not file written statement on behalf of the respondent No.3. Then respondent No.3 changed her counsel and Vakalatnama wasfiled by Shri Sonane Advocate, who also pleaded 'No Instruction' on 3.4.2008. Thereafter nobody has appeared on behalf of the non applicants and trial Court on the basis of pleadings and the evidence adduced by the applicant, vide judgment and decree dated 1.5.2008 allowed the suit ex parte. Then respondent No.1 filed an application under Order 9 Rule 13 of CPC. The same was dismissed vide order dated 4.7.2011. Thereafter respondent No.1 preferred a miscellaneous appeal

before the lower appellate court and vide judgment dated 6.3.2013 the appeal was allowed and matter was remanded back with a direction to decide the suit afresh after giving proper opportunity of hearing to the parties.

3/ Learned counsel for the petitioner contended that impugned order passed by the lower appellate court is absolutely illegal, unjust, arbitrary and against the facts on record. The lower appellate court has erred in not considering the fact that no one appeared on behalf of the non applicants. It is not expected from Advocate to search the client and inform him on each and every date. Lower appellate court has failed to consider that no sufficient reason has been assigned by the non applicants for condonation of delay occurred in filing the application for setting aside ex parte judgment. Findings recorded by the lower appellate court is perverse and against the law. Hence, he prays that impugned judgment and decree dated 6.3.2013 be set aside and judgment and decree passed by the learned trial Court in Civil Suit No.21-A/2003 be restored.

4/ This civil revision is pending since 2013 but nobody has appeared on behalf of the respondent No.1 despite service of the notice.

5/ Counsel for the petitioner heard at length and perused the record.

6/ The petitioner/plaintiff had filed a civil suit for declaration and mandatory permanent injunction in the year 2003 against 21 defendants including the respondent No.1.

7/ From perusal of the record it appears that contesting respondent No.1/defendant Rukmani Bai after service of the notice appointed a counsel namely Mr. Kailash Chouhan on behalf of her but he did not file any written statement. Then respondent No.1 changed her counsel but the later appointed counsel Shri Sonane also pleaded 'No Instruction' before the trial Court on 3.4.2008. Thereafter nobody has appeared on behalf of the respondent No.1 and other respondents/defendants. Therefore, trial Court has proceeded ex parte and delivered ex parte judgment on 1.5.2008. After almost one year, respondent No.1 had filed an appeal for setting aside the ex parte judgment and decree before the first appellate court and the same was allowed on the ground that it is a mistake on the part of counsel for respondent No.1 that he did not inform the respondent No.1 for her appearance before the trial Court.

8/ Hon'ble Apex Court in the case of Salil Dutta Vs. T.M. and M.C. Private Ltd. reported in (1993) 2 SCC 185 has held that:-

"8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."

9/ Hon'ble Apex Court in the case of Vijaykumar Durgaprasad Gajbi and others Vs. Kamlabai and others reported in (1995) 6 SCC 148 has observed as under:-

"5. The question is whether the appellants have given proper explanation for their failure to appear before the court on 20.2.1992. Though Shri Sanghi contended that all through they were diligent and it was at the instance of the plaintiffs that the suits were dragged on and that, therefore, no blame could be laid on the appellants' door, unfortunately, no material was placed on the record either in the trial Court or in the High Court, much less in this Court, to show that they were diligently prosecuting the suits. On the other hand, the trial court recorded that the appellants, being in actual possession of the suit property, were intending to prolong the matter."

10/ The coordinate Bench of this Court also in the case of Suresh alias Pappu Vs. Vidhi Chandra Dharamshala and others reported in 2002(1) MPHT 268 has held as under:-

"It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex parte decree notwithstanding the negligence and/or misdemeanour of the Advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its Advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult."

11/ Respondent No.1 Rukmani Bai has herself admitted that she had attended the court proceedings and also made contact with Mr. Kailash Chouhan Advocate, but he did not give her correct information.

Shri Kailash Chouhan Advocate has also stated in his statement that he had called Rukmani Bai so many times for the reply but she never came to meet him, therefore, he pleaded 'No Instructions' before the trial court and also informed Rukmani Bai about it.

12/ From perusal of the above evidence, it is apparently clear that respondent No.1 Rukmani Bai was negligent and careless to appear before the trial Court and even her counsel called her, but she did not appear before the Court. Therefore, trial court has rightly proceeded ex parte against her. It is not expected from any advocate to search the client and inform her on each and every date. It is the duty of the party to proceed her case along with the counsel.

13/ In view of the foregoing discussion, impugned judgment dated 6.3.2013 passed by the learned first appellate court appears to be against the law and fact of the present case. Respondent No.1 Rukmani Bai had failed to establish the sufficient ground for her non appearance before the trial Court, therefore, the impugned judgment passed by the learned first appellate court cannot be legally sustained and is hereby set aside.

C.C. as per rules.

(Anil Verma) Judge Trilok/-

Digitally signed by TRILOK SINGH SAVNER Date: 2022.04.21 18:46:04 +05'30'