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1995 (1) CIVIL COURT CASES 0382

DELHI HIGH COURT
D.K.JAIN & D.P.WADHWA, JJ.
Civil Misc.No.6294/91 & 1648/92 in C.W.P.No.444/89, D/19.08.1994.
Lalit Mohan Puri
Vs
Pure Drinks (New Delhi) Ltd.
Civil Procedure Code, 1908, Order 9 - Rule 13 - Writ petition - Provisions of O.9 R.13
CPC apply to writ proceedings - If the office staff of an Advocate is negligent in keeping track
with cause list and missed the case, it is not sufficient cause for non-appearance - But a litigant
cannot be made to suffer on that account because it is no fault on his part - Exparte judgment
set aside - Petition restored. (Paras 4 to 10)
Cases referred:
AIR 1991 Delhi 194 (Para 4); AIR 1981 SC 1400 (Para 5); AIR 1987 SC 1353 (Para 5);
1993(2) SCC 185 (Para 7).
Counsels:
Mr.N.B.Shetty, Sr.Advocate with Mr.Ravikesh Sinha, for the Petitioner Mr.Anand Prakash,
Sr.Advocate with Mr.Samir Prakash, for the Respondent No.1.

JUDGMENT

D.K.Jain, J. - By these two applications made under Order 9 Rule 13 read with Section 151
of the Code of Civil Procedure, first being main and the other styled as supplementary application,
the respondent-management seeks setting aside of ex-parte judgment delivered on October 30, 1991
whereby petitioner-workman's writ petition under Article 226 of the Constitution, assailing the award
dated October 29, 1988 given by the Labour Court, against him and seeking its reversal was allowed.
The award was set aside and it was held that the petitioner was entitled to re-instatement with all
back wages and other consequential benefits.

2. The grounds taken up in the two applications, seeking recalling of the impugned
judgment dated October 30, 1991, succinctly stated, are:-

(i) that the matter used to be shown on the list of DB-VII but suddenly appears to have been
transferred from DB-VII to DV-V from October 28, 1991 onwards, which fact was not noticed by
Gopal Singh, the Court Clerk of Dr.Anand Prakash, Sr.Advocate whose duty was to scrutinize cause
list and inform abut the listing of the cases to Dr.Anand Prakash as well as to Mr.Samir Prakash, the
advocate on record of the respondent.

(ii) that any rate there has been no lapse on the part of the applicant-manage-ment who had
been defending the case diligently before the Labour Court and in the High Court and had entrusted
the matter to the counsel for being perused and prosecuted on their behalf; it should not be penalized
for the lapse of the counsel; and

(iii) the petitioner had been guilty of making various false statements, con-cealing material
facts and correspondence.

3. In support of their stand, the applicant-management has filed affidavits of Gopal Singh,
counsel's clerk, Mr.M.S.Chaudhary, the Deputy Personnel Manager of the respondent-company,
Mr.Samir Prakash, Advocate and Dr.Anand Prakash who generally support the averments in the two
applications. The applications are resisted by the petitioner, mainly on the technical ground that an
application under Order 9 Rule 13 read with Section 151 CPC is not maintainable as the respondent

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management had entered appearance; had filed counter-affidavit; at the stage of admission it was
represented and, therefore, proceedings against it were not ex-parte. Other pleas in the applications
are generally denied.

4. We have heard learned counsel for the parties. It appears to us that case was for final
hearing on the board of DB-VII till October 27, 1991 and then appeared on the board of DB-V from
October 28, 1991 onwards. The title of the case and the names of the counsel were correctly shown
in the cause list and the case continued to be listed on the Board of DB-V on October 29, 1991 and
October 30, 1991. On the last mentioned ate when the case was heard there was no appearance on
behalf of the respondent. After hearing counsel for the petitioner the impugned judgment was
delivered. Due to their own negligence and careless-ness, the office of Dr.Anand Prakash failed to
notice the case on the cause list. The plea that normally benches change twice in a year and a sudden
transfer of this case from one bench to another led to this mishap has no force. There is no rule that
transfer of a case from one bench to another can take place only at the time of change in roster. It is
the duty of the party or his counsel to keep a track of the case by scrutinizing the cause list diligently.
Admittedly, the office of the counsel failed to do so. As such their seems to be no sufficient cause for
non-appearance of the counsel for the respondent on October 30, 1991. However, it was contended
by Dr.Anand Prakash, learned counsel for the respondent, that though there was negligence on the
part of his office in not keeping track of the case but the non-appearance of the counsel was not
deliberate or with ulterior motive and in any case, his clients should not be made to suffer on account
of negligence on the part of his office. In support reliance is placed on a judgment of this Court in
Bank of India v. M/s.Mehta Brothers and others, AIR 1991 Delhi 194, in which it was observed that
if it is shown that the party has done everything possible for the conduct of the case by engaging a
lawyer and giving instructions it cannot be denied justice on account of the negligence of its lawyer.

5. The said judgment was based on two judgments of the Supreme Court in Rafiq and
another v. Munshilal and another, AIR 1981 SC 1400, and Collector, Land Acquisition, Anantnag
and another v. Mst.Katiji and others, AIR 1987 SC 1353. In Rafiq's case while considering the
question of restoration of appeal which was dismissed in default on account of non-appearance on
the lawyer of the party, the Supreme Court held that it is not proper the party should suffer for the
inaction, deliberate omission or misdemeanour of his agent i.e. his lawyer.

6. In Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others, (supra) the
Supreme Court observed that it had been making justifiably liberal approach with reference to the
expression 'sufficient cause' and held that the expression is adequately elastic to enable the courts to
apply the law in a meaningful manner which sub-serves the ends of justice, that being the life
purpose for the existence of the institution of the courts.

7. In a recent pronouncement of the Supreme Court in Salil Dutta v. T.M. and M.C.Private
Ltd., 1993(2) Supreme Court Case 185, the Supreme Court has held that though in certain situations,
the Court may, in the interests 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 client was
innocent litigant but there is no such absolute rule that a party can dis-own its advocate any time and
seek relief. The Supreme Court has observed that the observations made in Rafiq's case (supra) must
be understood in the facts and circumstances of that case and cannot be understood as an absolute
proposition.

8. In the affidavit filed by Mr.Samir Prakash, counsel for the respondent, with the
supplementary application, it is stated that the officials of the respondent had been diligently
prosecuting the case; the mistake had occurred due to fault of the office of the counsel and not for
any fault of the party. It is a categorical statement by the counsel for the respondent on affidavit
which is similarly supported by counsel's office clerk, Gopal Singh and no material to the contrary
having been brought on the record by the petitioner, there is no reason to disbelieve it. It is a case of
lapse on the part of the counsel and his office.

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9. Salil Dutta's case (supra) related to proceedings in a suit, where the presence of the party
may be essential/needed for recording the statement before issues, admission and denial of
documents and evidence at the trial, which takes can best be performed by the party itself. In an
appeal or writ proceedings the personal appearance of the party is not necessary and after engaging
and briefing a counsel, a party can justifiably trust that the advocate would safeguard his interest in
the best possible way. In the circumstances we feel that the applicant respondent should not suffer for
no fault of theirs, which is attributable to the office of their counsel.

10. We are satisfied that there was no fault on the part of the applicant-respondent for their
non-appearance in court when the case was called for hearing and they should not made to suffer for
the negligence of the office of the counsel. The exparte judgment has, therefore, to be recalled. The
maintainability of the present applications under Order 9 Rule 13 read with Section 151 CPC is
hyper-technical and cannot be accepted in writ proceedings. We also notice that recalling the
impugned judgment would mean setting back the clock by almost three years for which the writ
petitioner should be adequately compensated.

Consequently the applications are allowed; the judgment dated October 30, 1991 is set aside
and the writ petition is restored to its original number for disposal, subject, however, to payment of
costs, which we quantify at Rs....

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