CR No.5348 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.5348 of 2010 (O&M) Date of decision: 1.11.2010 Lt. Col.Tejinder Singh Brar ......Petitioner(s) Versus Mrs. Geetinder Grewal and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. H.S. Awasthi, Advocate for the petitioner. Rakesh Kumar Garg, J. (Oral) By way of this petition, the petitioner has challenged the impugned order dated 11.8.2010 whereby his application for setting aside ex parte proceedings against him has been rejected. As per the averments made in this petition, respondents No.1 and 2 filed a petition under Section 276 of Indian Succession Act for a grant of probate in respect of Will dated 19.11.1993 executed by Major Satinderjit Singh Brar. The petitioner was represented through Sh.S.S. Saron, Advocate as he then was (now the Hon'ble Judge of this Court). The aforesaid petition was transferred to the Court of District Judge, Chandigarh vide order dated 27.1.2005 and the parties were directed to appear before the said Court. No one represented the petitioner before the District Judge, and registered notice was also sent to him vide order dated 29.9.2005 for 16.12.2005. However, no one was present on behalf of the petitioner and the Court passed an order proceeding ex parte against him but at that stage one Sh. Charan Singh, Advocate appeared on behalf of the petitioner and on his request, the ex parte proceedings were set aside against the petitioner. The petitioner CR No.5348 of 2010 (O&M) 2 continued to be represented through the aforesaid Advocate. The petitioner was proceeded against ex parte vide order dated 4.9.2008 as his counsel did not appear. The petitioner filed an application on 16.7.2010 before the trial Court praying for setting aside the ex parte proceedings against him on the ground that the originally the case was filed before the Hon'ble High Court and his counsel was elevated as a Judge of this Court and thereafter, he was not represented by any counsel. Neither he was ever served any notice by this Court/any Court and after his retirement when he contacted the counsel for respondents No.2 and 3, he came to know about the proceedings. It was specifically stated by the petitioner in the application that he never appointed Charan Singh, Advocate, as his counsel and therefore, he could not have represented him before the trial Court. On these averments, the aforesaid application was filed praying for setting aside the ex parte proceedings against him. However, the aforesaid application was withdrawn by the petitioner after filing of reply by respondents No.1 and 2. The petitioner filed fresh application for setting aside ex parte proceedings against him stating that he was not properly represented and Sh. Charan Singh, Advocate did not perform his duty and was negligent and therefore, the petitioner, who was serving in the Army, could not be made to suffer on this account and therefore, the ex parte proceedings are liable to be set aside against him and he is entitled to be relegated to the stage of ordering ex parte proceedings on the first date. The aforesaid application of the petitioner was contested by respondent No.1 and 2 and the same was dismissed vide impugned order. The said order is under challenge before this Court. I have heard learned counsel for the petitioner. CR No.5348 of 2010 (O&M) 3 It is not in dispute that Mr. Charan Singh, Advocate, who represented the petitioner, was appearing for him upto 4.9.2008. It is further not disputed that even thereafter Mr. Charan Singh was representing the petitioner. Moreover, the petitioner has not come forward with the plea that the aforesaid Advocate was not authorized by him to appear on his behalf. However, the aforesaid argument of the learned counsel for the petitioner is again not sustainable in view of the averments made by him in the application dated 16.7.2010 filed before the trial Court wherein in para Nos.9 and 10 it has been stated that Mr. Charan Singh, Advocate, who has appeared for him, was never authorized by the petitioner. On one hand, the petitioner has taken the stand that he had not authorized any counsel to appear on his behalf and on the other hand, he is submitting that he cannot be made to suffer on account of the fault of his counsel. Faced with this situation, learned counsel for the petitioner has submitted that no prejudice is going to be caused to the respondents if one opportunity is granted to the petitioner to lead his entire evidence as he cannot be made to suffer because of the fault of his counsel. In this view of the matter, it is clearly established that the petitioner has not come to the Court with his hands clean and therefore, he is not entitled to any relief. Dismissed. The record of the trial Court be sent back forthwith. November 1, 2010 (RAKESH KUMAR GARG) ps JUDGE CR No.5348 of 2010 (O&M) 4