Brij Lal vs VIII Addl. District Judge and Others

A.B. Srivastava, J.—Since counter-affidavit and rejoinder affidavit, have beer. exchanged between the parties in this writ petition, it is being disposed of at admission stage having heard the Learned Counsel appearing on behalf of both the parties.

Ejectment suit No. 18 of 1984 was filed by the landlord respondent No. 3 against the respondent No. 4 Amrit Lal and the petitioner Brij Lal with, allegation that the tenant Amrit Lal has inducted his brother the petitioner in the tenancy without permission of the landlord. The ejectment was also sought on the ground of default, the suit was contested and was finally dismissed by the J.S.C.C. In revision, however, the District Judge on 7.12.1988 set aside the same and remanded the case for decision afresh after evidence on the question of rate of rent. After remand, the trial Court fixed a date for hearing and informed counsel for the petitioner in the suit by means of a notice. The said counsel endorsed thereon that the notice may be sent to the petitioner, since no intimation was given by the counsel or the Court to the petitioner he could not appear and the suit was decreed ex | arte on 7.2.1990. An application under Order IX, Rule 13, CPC was filed on behalf of the petitioner but no compliance was made by the counsel under Section1 7 of Provincial Small Causes Court Act and the said application was dismissed. It is alleged that the petition on hearing about ex-parte decree filed a revision be ore the District Judge with application u/s 5 of Limitation Act. The learned Session Court by order dated 16.11.1991 dismissed the. revision as time ban ed. Aggrieved this petition.

The contention on behalf of the petitioner is that in view of the endorsement of the counsel on the notice served on him for 23.1.1989 the date fixed for hearing in the suit, it was incumbent on the trial Court to send notice to the petitioner and since it was not done, he cannot be deemed to have notice or knowledge of the date of hearing, or the decree passed, and the revision having been filed on getting knowledge, delay was satisfactorily explained within the meaning of Section 5 of Limitation Act. This contention is devoid of force. Under law notice given to at counsel is for all purposes a notice to the concerned party whom he represents in view of the provisions of Rule 5 of Order IX, C.P.C. The mere fact that the counsel on being served desired the Court to send notice the party does not change his position.

It has been laid downy the Supreme Court in Salil Dutta v. T.M. & M.C.O Pvt. Ltd. 1993(22) CTR 34 (Para 4), that Advocate is an agent of the party. His act and statement made within the authority given to him arc act and statement of the principal i.e. the party who engaged him.

Reliance on behalf of the petitioner has been placed on a decision of Supreme Court in Rafiq and Another Vs. Munshilal and Another, . The said authority, however, does not help the petitioner in the nature of the facts of this case where no misdemeanor on the part of the counsel is established, rather the facts would go to sow persistent default by the petitioner himself it is apparent from the facts found by the learned Additional District Judge that even after 23.1.1989 the case remained pending about an year, during which on 7.2.1990 an application was moved or setting aside the order to proceed ex parte which was rejected on merit by J.S.C.C. After ex parte decree was passed, an application for setting aside the same was made but no compliance of Section 17 was made. The contention that the non-compliance was due to misdemeanor on the part of the counsel is devoid, of substance, because it was the party, not the counsel, was required to furnish the amount or security for being deposited. Clearly therefore, default on the part of the petitioner on all stages was intentional and without any valid reason. The learned Additional District Judge was fully justified in rejecting his application for condonation of delay in filing the revision, and dismissing the revision as time barred.

The writ petition being devoid of merit is hereby dismissed.