Civil Revision No. 3604 of 2009 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Civil Revision No. 3604 of 2009 Date of decision. 24.09.2009 Kulwant Kaur w/o Shisha Singh s/o Khazan Singh, r/o Klhothe Gharachon, Police Post Gharachon, P.S. Bhawanigarh, Tehsil and District Sangrur. ....... Petitioner Versus Shisha Singh son of Khazan Singh r/o Khothe Gharachon, Police Post Gharachon, P.S. Bhawanigarh, Tehsil and District Sangrur. ...... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ashok Bhardwaj, Advocate for the petitioner. Mr. S.S. Kamboj, Advocate for the respondent. **** Sham Sunder, J. This revision-petition is directed against the order dated 20.04.2009, rendered by the Court of Additional Civil Judge (Senior Division), Sangrur, vide which it accepted the application under Order 9 Rule 13 of the Code of Civil Procedure, for setting aside the ex-parte judgment and decree Civil Revision No. 3604 of 2009 --2-- dated 14.09.2005 and ex-parte proceedings order dated 10.06.2005. 2. Kulwant Kaur, filed a suit for maintenance under the Hindu Adoption and Maintenance Act against Shisha Singh, respondent, her husband. The evidence was led, in that suit, by the plaintiff, as well as the defendant. When the case was fixed for rebuttal evidence, the Counsel for the defendant/respondent pleaded no instructions, and the defendant/respondent was proceeded against ex-parte. Ultimately, an ex-parte decree dated 14.09.2005 granting maintenance at the rate of Rs.1200/- per month from 24.09.1998 to 23.09.1999 was passed by the Court of Additional Civil Judge (Senior Division), Sangrur. It was also directed that the charge on the property of Shisha Singh, in respect of the maintenance, granted in favour of Kulwant Kaur, was created. 3. An application for setting aside the ex-parte decree dated 14.09.2005 and ex-parte proceedings order dated 10.06.2005, was filed by Shisha Singh, applicant/defendant, that since he was unfit to move due to paralytic attack, and even could not speak properly, he could not attend the Court Civil Revision No. 3604 of 2009 --3-- on 2-3 dates, before passing the ex-parte decree. It was stated that his Counsel never informed him that he had pleaded no instructions, on his behalf. It was further stated that no notice was ever received by the defendant, from the Court, after pleading no instructions, by his Counsel, to appear on his behalf. It was further stated that when the son of the applicant/defendant, visited Sangrur and tried to contact his Counsel, but his junior Counsel was available, who told that the case had been decided against him as S.Bharpur Singh, Advocate, had pleaded no instructions, on his behalf, in the Court. It was further stated that there was sufficient cause, for setting aside the ex-parte decree, as also the ex-parte proceedings order, referred to above. 4. In reply to the application, the plaintiff/respondent pleaded that the application was not maintainable, as after the parties closed their evidence, it was for the Court to go through the file and pronounce the judgment. It was stated that the judgment and decree dated 14.09.2005, therefore, could be treated to have been pronounced on merits and not ex-parte. It was further stated that once the Counsel for the defendant, pleaded no Civil Revision No. 3604 of 2009 --4-- instructions, on his behalf, there was no necessity to issue notice to him, as there is no legal provision in that regard. It was further stated that the theory of defendant was concocted. 5. From the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether there are sufficient grounds to set aside the judgment and decree dated 14.09.2005? OPA 2. Whether application is not maintainable ?OPR 3. Whether applicant has no right to file the present application ?OPR 4. Relief.” 6. After hearing the Counsel for the parties, and, on going through the evidence on record, the trial Court set aside the ex-parte judgment and decree dated 14.09.2005 and the ex-parte proceedings order dated 10.06.2005. 7. Feeling aggrieved, the instant revision petition, has been filed, by the revision petitioner. 8. I have heard the Counsel for the parties, and have gone through and perused the record of the case, carefully. Civil Revision No. 3604 of 2009 --5-- 9. The Counsel for the revision-petitioner, submitted that the application for setting aside the ex-parte judgment and decree was not maintainable, as once the parties closed their evidence, it was for the Court to go through the file and pronounce the judgment. He further submitted that even otherwise, there was no sufficient cause for setting aside the ex-parte decree dated 14.09.2005 as also the ex-parte proceedings order dated 10.06.2005. He further submitted that the respondent/defendant was neither ill nor suffered any attack of paralysis. He further submitted that once the Counsel for the defendant/respondent, pleaded no instructions on his behalf, under no provision of law, the Court was under obligation to issue a fresh notice to him (defendant). He further submitted that the order impugned being illegal, was liable to be set aside. 10. The Counsel for the respondent, however, submitted that the order passed by the trial Court is perfectly legal and deserves to be upheld. 11. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the revision petition, is liable to be accepted, for the reasons to be recorded hereinafter. Normally, Civil Revision No. 3604 of 2009 --6-- the Courts, in such like cases, are inclined to allow the application for setting aside the ex-parte decree, yet this principle is not of universal application. Every case is required to be decided on its own facts and circumstances. First, coming to the question, as to whether, the Court was under obligation to issue a notice to the defendant/respondent, when his Counsel, pleaded no instructions, on his behalf, and he was proceeded against ex-parte on 10.06.2005, it may be stated here that there was no obligation on the Court to do so. In Suresh Kumar v. Smt. Daryai, 1996(3) PLR 379, a case decided by a Division Bench of this Court,a similar question arose for decision. The principle of law, laid down, in the aforesaid case, was to the effect, that when an advocate withdraws from the proceedings, by pleading no instructions, on behalf of a party, it was not always necessary for the Court, to issue notice, to such a party before proceeding ex-parte. If the party does not approach his advocate and does not settle terms with him, the Counsel is justified to withdraw from the proceedings. It is the duty of the party to attend the proceedings, alongwith the advocate. Merely by engaging Counsel, the party is not absolved of its responsibility. If the Civil Revision No. 3604 of 2009 --7-- Counsel withdraws, for want of instructions, from his client, the Court is under no obligation to serve him with another notice at public expense. There is no such procedure, in the Code of Civil Procedure, to issue a fresh notice. The principle of law, laid down, in the aforesaid case, is, fully applicable to the facts of the present case. Once on 10.06.2005, the Counsel for the defendant/respondent, pleaded no instructions on his behalf, the Court was under no obligation in view of the principle of law, laid down, in Suresh Kumar's case (supra) to issue a fresh notice to him, to appear, in the Court, in the case. The submission of the Counsel for the revision petitioner, in this regard, appears to be correct, and is accepted. 12. On the other hand, the Counsel for the respondent placed reliance on Malkiat Singh and another v. Joginder Singh and others, AIR 1998 Supreme Court 258, Sanjhi Ram v. Ajit Singh, 2006(4) RCR (Civil), 247 and Balwinder Singh v. Tarsem Lal, 2000(4) RCR (Civil) 208, in support of his contention, that the Court was under obligation, to issue a fresh notice, to the defendant/respondent, when his Counsel pleaded no instructions, on his behalf, on 10.06.2005. Civil Revision No. 3604 of 2009 --8-- The perusal of the aforesaid cases, the first of which was decided by the Apex Court, and the latter were decided by the Single Benches of this Court, clearly goes to show that no invariable principle of law, was laid down, therein, that in every case when the Counsel pleads no instructions, on behalf of his client, the Court is under obligation to issue a fresh notice to him, to appear, in the Court, in a case. The aforesaid cases were decided, on the peculiar facts, and circumstances, prevailing therein. Only the ratio of law, laid down, in a decision of the Apex Court, is required to be applied to the facts of a particular case. If a case is decided by the Apex Court or this Court, on the peculiar facts and circumstances, prevailing therein, then it cannot be said that it amounted to laying down the specific principle of law of universal application. Under these circumstances, no help, can be drawn, by the Counsel for the respondent, from the aforesaid cases. The submission of the Counsel for the respondent, therefore, being devoid of merit, must fail, and the same stands rejected. 13. Now, coming to the factum, as to whether, there was sufficient cause, for setting aside the ex-parte decree Civil Revision No. 3604 of 2009 --9-- dated 14.09.2005 and the ex-parte proceedings order dated 10.06.2005. It may be stated here that answer is in the negative. The principle of law, laid down, in Smt. Tara Wanti v. State of Haryana through the Collector, Kurukshetra, AIR 1995 Punjab and Haryana 32, (Full Bench), was to the effect that sufficient cause must be a cause, which is beyond the control of the party invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bona-fide, which is not done with due care and attention. Precisely, the meaning of the word sufficient cause, and its scope, should not be crystallized by any rigid definition. The cause which was pleaded, in the application, for setting aside the ex-parte decree dated 14.09.2005, and the ex-parte proceedings order dated 10.06.2005, by the defendant/respondent, was to the effect, that he suffered a paralytic attack and, therefore, could not appear, in the Court, on 2-3 dates before the passing of the decree. Had the defendant/ respondent, suffered from paralytic attack, which could be said to be a very serious disease, he would have been admitted, in some hospital, where he was required to be Civil Revision No. 3604 of 2009 --10-- provided the regular treatment. Paralytic patients, do not respond to treatment, in the normal course, very soon. Regular treatment of a paralytic patient requires considerable time. The defendant/respondent was proceeded against ex-parte on 10.06.2005, when his advocate pleaded no instructions. He did not produce any medical record, nor examined any Medical Officer to prove that either on 10.06.2005 or earlier to that, or between 10.06.2005 to 14.09.2005, he suffered paralytic attack, resulting into his admission, in the hospital, and , therefore, he was disabled to appear in the Court. His bald statement that he suffered Paralytic attack during the period aforesaid, and, as such, he was unable to move about could not be taken, as a gospel truth. Had he been suffering, from a minor disease, it would have been said that his admission was not necessary, nor it was required of him to follow the regular treatment. On the other hand, the evidence, which was produced by the defendant/respondent, regarding his illness, by way of examining Dr. Amrish Mittal, AW-1, and producing A-1 and A-2 clearly showed that he was admitted in Baba Aapo Aap Hospital, near GGS Public School, Mangwal, Sangrur(Pb.) on 25.09.2005 at 8.15 PM and was discharged Civil Revision No. 3604 of 2009 --11-- therefrom on 28.09.2005. The disease which was mentioned therein was to the effect, that he showed his inability to bear weight, on legs, and complained of swelling of knees. No neurological deficiency was found. The evidence of Dr. Amrish Mittal, AW-1, and the documents A-1 and A-2 clearly go to show that the petitioner was not got admitted and treated on 10.06.2005 or before that when he was proceeded against ex-parte or between 10.06.2005 to 14.09.2005 when the ex- parte decree was passed. The case set up by the defendant/respondent, that he suffered Paralytic attack before 10.06.2005 or on 10.06.2005, or any time between 10.06.2005 to 14.09.2005, therefore, could not be said to be correct and was, belied from the medical evidence, aforesaid, as also the medical treatment, referred to above. The ex-parte proceedings order dated 10.06.2005 and the ex-parte judgment and decree dated 14.09.2005 were not required to be set aside at the mere asking of the defendant/respondent, that he suffered the paralytic attack. 14. Even otherwise, the perusal of the file shows that Kulwant Kaur wife of Shisha Singh, defendant, filed the suit for maintenance as far back as on 24.02.1995. Civil Revision No. 3604 of 2009 --12-- The suit remained pending for quite a long time. Ultimately, it was decreed vide judgment and decree dated 14.09.2005 i.e. after 10 years. It is also proved that Kulwant Kaur, revision- petitioner, is aged about 70 years, and has no source of income. Even after 10.06.2005, when the defendant- respondent was proceeded against ex-parte, as many as six opportunities for rebuttal evidence had been granted, but he did not appear, in the Court, and moved an application only after the ex-parte decree was passed. It means that the only motive of the defendant/ respondent, was to delay the proceedings one way or the other. Thus, right from 1995 till date, the respondent has failed to pay even a single penny as maintenance to Kulwant Kaur. His sole motive was to delay the proceedings on one account or the other. While setting aside the order dated 20.04.2009, the respondent is liable to be burdened with heavy costs, for delaying the proceedings, non- payment of a single penny as maintenance to his wife Kulwant Kaur, till date, driving her to penury and wasting the time of the Court. The order impugned, thus, suffers from illegality, and perversity, warranting interference of this Court, in its revisional jurisdiction, under Article 227 of the Civil Revision No. 3604 of 2009 --13-- Constitution of India. The order impugned is, therefore, liable to be set aside. 15. For the reasons recorded above, the petition is accepted. The order dated 20.04.2009, rendered by the Court of Additional Civil Judge, (Senior Division), Sangrur, is set aside. An amount of Rs.10,000/- is imposed, as costs, upon the respondent, for delay in making payment of the maintenance allowance, to Kulwant Kaur. 16. The parties are directed to appear in the trial Court on 20.10.2009, for further proceedings. (Sham Sunder) Judge 24.09.2009 dinesh