Smt. Dropti vs Chinta and others

R.S. Narula, J.—This is an application under Order 41 Rule 21 of the CPC for setting aside the ex parte judgment and decree passed by me on April 1, 197 in Regular Second Appeal 361 of 1961. on the ground that Mr. Amar Chand Hoshiarpuri, learned counsel for the applicants (who were respondents in the appeal) had died on January 23, 1970, and the applicants had thereafter become unrepresented in the case, and still no notice was issued to them by the Court informing them of toe death of Mr. Hoshiarpuri and giving them an opportunity to make other arrangement for being represented in this Court.

Proviso to Rule 8 of Chapter 8-A, Volume V, of the Rules and Orders framed by this Court requires that intimation of the actual date of hearing fixed in a case (pukka date) has to be sent by registered post (acknowledgement due) to such parties as are not represented by counsel after service of notice for a tentative date. Though the applicants were represented by late Shri Amar Chand Hoshiarpuri. and, therefore, no question of issuing any actual date notice to them could consequently have arisen, they became unrepresented on and after 23rd January, 1970, when Mr. Hoshiarpuri expired, and the office should have sent actual date notice to the respondents in the appeal who had become unrepresented. It is not disputed that this has not been done.

Mr B.N. Aggarwal, learned counsel for the respondents, has emphasised that Mr. Om Farkash Hoshiarpuri Advocate, who is the son of late Mr. Amar Chard Hshiarpun, was called by me when nobody appeared for the respondents in the appeal and it was only after he had expressed his inability to represent the respondents for want of instructions that I had proceeded to hear the appeal ex"parte. That does not, in my opinion, improve matters to any practical extent. I think a salutary principle of procedure has been laid down by V.D. Bhargava, J of the Allahabad High Court in Trilok Chand v. Ram Gopal, AIR I960 All. 700 where in it was held that where a respondent to an appeal files a vakalatnatm of his counsel, it is the duty of the counsel, to look after the case and when the counsel dies, it is the duty of the Court to inform the respondent directly that his counsel is dead and arrangement for another counsel may be mad The Allahabad High Court decided that it this is not done and the appeal is disposed of ex pane, the respondent is entitled to get the appeal restored under Order 41 Rule 21 of the Code of Civil Procedure. I am in full agreement with that view of the law. The respondents in the appeal should not suffer on account of an error of the office 01 the Court in hot informing them and not serving them with an actual date notice.

I, therefore, recall and set aside my ex-parte judgment dated April 1,1971, allowing the Regular Second Appeal, and set aside the x-parte decree passed by this Court on the basis of that judgment and restore the appeal (R.S.A. 361 of 1961) which shall now be listed for hearing on ''October 26,1971. The records of the lower Courts which are stated to have been sent back should be recalled immediately. The appeal should be listed at the top of the daily board on October 26,1971. The costs of this application shall abide the result of the appeal. The appeal having been restored, status quo as today may be maintained till the final disposal of the appeal.