Mrs. Kanak Singh vs Additional District Judge

Rajiv Sharma, J.—Heard Counsel for the parties.

From the record it comes out that Opposite party No. 3-A.K. Singh filed a suit in the Court of Judge, Small Causes, Lucknow, which was registered as SCC Suit No. 36 of 1985. On account of dismissal of the suit, the proceedings went to the Revisional Court and ultimately reached to this Court through writ petition No. 36 of 2001(RC). The said judgment was assailed in Revision by the Petitioners inter-alia on the ground that the impugned order suffers from legal infirmities as the Petitioner was not afforded reasonable opportunity of hearing. Furthermore, no notice was actually served upon him after remand of the matter. vide judgment and order dated 6th December, 2004 disposed of the writ petition and remanded the matter to the trial court for decision afresh in the light of the observations made therein. After remand, the suit was decreed vide judgment and order dated 26.7.2007.

The Revisional Court in its impugned judgment has observed that after remand of the case, an order for issuing notice to the Petitioner and his Counsel was passed and the notice was also issued. Counsel for the Petitioner has argued that the Revisional Court committed material irregularity in not considering the fact that the notice was never served upon the Petitioner and the service of notice on the Counsel is not sufficient. Furthermore, the Counsel upon whom the notice was served, never informed the Petitioner. He asserted that for the fault of the Advocate, litigant-Petitioner should not made to suffer.

In this connection I am also of the considered view that leaving apart whether there was any fault on the part of the Counsel or not, the very absence deliberate or intentional on the part of Counsel to appear and argue the case, cannot be visited on a litigant to his detriment. In Rafiq and Another Vs. Munshilal and Another, the Apex Court held that view that the litigant should not suffer for the fault of Counsel. The relevant observation made by the Apex Court may be excerpted below.

...the problem that agitates us is whether it is proper that the party should suffer from the inaction, deliberate omission or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order....

In view of the above fact, it is quite apparent that the Trial Court passed the order without hearing the Petitioner and the specific plea of the Petitioner on this point was also not considered in its correct prospective by the Revisional Court. Accordingly, both the impugned orders are liable to be set-aside, which are hereby set-aside. The Trial Court is directed to decide the suit as per terms of the judgment and order dated 6th December, 2004, referred to above.

During the course of arguments, Counsel for the contesting Respondent also submitted that in case this Court is remitting the matter to the Trial Court for fresh decision, the hearing may be expedited. It is true that the parties to the suit are litigating since 1985.

Accordingly, it is provided that the SCC Suit No. 36 of 1985, shall be decided within six months.

The writ petition stands allowed in above terms.