CR No. 7375 of 2011 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No.7375 of 2011 Date of decision: 30.11.2011 Saudagar Singh and others ……petitioners Versus Baljit Singh …….Respondent CORAM : HON’BLE MR. JUSTICE A.N. JINDAL Present: Mr. Amit Kumar Goyal, Advocate, for the petitioners. ***** A.N. Jindal, J. This petition assails the order dated 17.11.2008 (Annexure P-1) passed by the Civil Judge (Junior Division), Dhuri, exparte decreeing the suit filed by the plaintiff-respondent (hereinafter referred as ‘the plaintiff’) for specific performance of agreement to sell. Petitioners have further sought quashing of the order dated 09.08.2011 passed by the Additional District Judge, Sangrur, dismissing the appeal filed by the defendants- petitioners (hereinafter referred as ‘the defendants’) against the order dated 17.11.2010 passed by the Civil Judge (Junior Division), Dhuri, dismissing their application under Order 9 Rule 13 CPC for setting aside the exparte judgment and decree dated 17.11.2008. On filing of the suit for specific performance by Baljit Singh- plaintiff, the defendants had appeared in the Court and were duly 1 CR No. 7375 of 2011 represented by a counsel. However, on 22.12.2007 their counsel had not appeared in the Court, therefore, they were proceeded against exparte. Consequently, an exparte decree for specific performance was passed against them on 17.11.2008. Aggrieved by the said judgment, this application for setting aside the exparte decree was filed by the defendants on 22.12.2009. The plea set up by the defendants is that though they had appeared in the Court through their counsel, yet on assurance of the counsel that they should not appear in the Court on each and every date and they would be informed by him, if required, therefore, they did not attend the Court. However, since they did not receive any telephonic call from the counsel and only came to know about the exparte judgment and decree when received summons in the execution filed by the plaintiff. It was further submitted that the defendants had no knowledge about passing of the exparte decree and they came to know only a few days prior to filing of the application. The plaintiff-respondent (hereinafter referred as ‘the plaintiff’) appeared and contested the application, wherein it was submitted that the defendants were duly served in the Civil Suit No.445 dated 06.11.2007 and they appeared through their counsel on 15.11.2007 and thereafter, the case continued to be adjourned for 22.11.2007 and 10.12.2007. Ultimately, they were proceeded against exparte on 22.12.2007. After recording evidence, the judgment and decree was passed on 17.11.2008. He denied, if the defendants were not in the knowledge of the judgment and decree dated 17.11.2008. It was further averred that the application is time barred, as one of the defendants namely Jaggar Singh was served on 18.08.2009 in the 2 CR No. 7375 of 2011 execution proceedings and munadi in the said execution proceedings was effected on 15.09.2009, whereas application was filed on 22.12.2009. After hearing the parties at length, the trial Court vide order dated 17.11.2010 dismissed the application, against which, the appeal was filed by the defendants, however, the same was also dismissed by the Additional District Judge, Sangrur, on 09.08.2011. Arguments heard. Learned counsel for the defendants-petitioners has not disputed that they were not served in the suit or they had not engaged a counsel. It is not disputed that the defendants were duly represented by their counsel Shri M.S. Khurmi, Advocate and thereafter, they were proceeded against exparte on 22.12.2007. The plea of the defendants that their counsel had assured them that they should not appear on each and every date and they would be informed, if required, appears to be without any merit. No such evidence has been led in order to establish this fact. Even Clerk of Shri M.S. Khurmi, Advocate, did not come forward to state that the defendants were not attending the Courts and they were not informed about the proceedings by him or the counsel. It has become fashion of the day that every litigant tries to skip over the responsibility by contemning his counsel. The case has been against the litigant and the counsel is mere an agent to appear in his case before the Court. It is the litigant, who has to supply information to the counsel, sign the pleadings and many other documents. As such, it does not lie in the mouth of the defendant to say that he was directed by his counsel to sit at home. Even if the defendants remained ill-advised, even then that could not be treated as sufficient cause for setting aside the exparte proceedings. He was not supposed to sit at home without making enquiry for more than one year. The first Appellate Court touched all the points 3 CR No. 7375 of 2011 while observing that these days every sane person is very conscious about the fate of their case and as such, it cannot be expected that the present petitioners, after being represented through their counsel in the main suit, thereafter, never contacted their counsel regarding the fate of their case and thereafter only came to know regarding the fate of the case when the execution application was filed before the trial Court. The first Appellate Court has further relied upon the judgment passed in Harbir Singh Malik Vs. Additional District & Sessions Judge, Lucknow and others, 2011 (1) Civil Court Cases 719, wherein it was observed that the plea that petitioner appeared and abstained himself and pleaded that his counsel did not inform him the correct position, as such, he could not attend the Court, is not sustainable plea to be accepted. Further, the application filed by the defendants, appears to be time barred. They were proceeded against exparte on 22.12.2007 and the judgment and decree was passed on 17.11.2008. Thereafter, in the execution, one of the Judgment Debtors-defendants namely Jaggar Singh was served on 18.08.2009. Therefore, the application for setting aside the exparte judgment and decree having been filed on 22.12.2009 certainly could be treated as time barred. No revision for setting aside the exparte judgment and decree dated 17.11.2008 is maintainable. Dismissed (A.N.Jindal) November 30, 2011 Judge ajp 4