IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Civil Revision No. 43 of 2010 Shri Sunil Agarwal ..… Revisionist Versus Smt. Madhvi Thakur …. Respondent With Civil Revision No. 44 of 2010 Shri Sunil Agarwal ..… Revisionist Versus Smt. Subdha Singh ..… Respondent With Civil Revision No. 45 of 2010 Shri Sunil Agarwal ..… Revisionist Versus Smt. Madhvi Thakur ..… Respondent With Civil Revision No. 46 of 2010 Shri Sunil Agarwal ..… Revisionist Versus Smt. Subdha Singh ..… Respondent Hon’ble Tarun Agarwala, J. Two suits were filed for eviction in the year 2007 and, since then, the proceedings have been going on and the matter was being adjourned for one reason or the other. It has been stated that since January, 2010, the trial court became vacant on account of the non-availability of a Presiding Officer. On 23rd July, 2010, the case was transferred to the court of 2nd A.D.J, Dehradun and 30th July, 2010 was fixed as the date for the evidence of the plaintiff. Notice to the counsel was issued which was duly received on 30th July, 2010. An application was filed by the plaintiff’s counsel for adjournment which was rejected by an order dated 30th July, 2010 and the evidence of the plaintiff’s witnesses was closed. The trial court, thereafter, 2 fixed 6th August, 2010 as the next date fixed for the evidence of the defendant’s witnesses. On 6th August, 2010, the defendant appeared in person alongwith an application for adjournment on the ground that his counsel was out of station. The trial court rejected this application but adjourned the matter in the interest of justice and fixed 9th August, 2010 for the examination of the defendant’s witnesses. On 9th August, 2010 when the case was called out, no one appeared on behalf of the defendant. The court accordingly closed the evidence of the defendant and fixed 10th August, 2010 for hearing. On 10th August, 2010, the matter was heard ex-parte since the defendant did not appear nor his counsel appeared and the judgment was reserved and was pronounced on 12th August, 2010 and the suit of decreed. From the record, it transpires that the counsel for the defendant applied for judgment on 7th September, 2010 and, thereafter, filed an application under Order 9 Rule 13 of the C.P.C. on 12th October, 2010 alongwith an application u/S 5 of the Limitation Act to condone the delay in filing the revision. The application u/S 5 of the Limitation Act was rejected by an order dated 2nd November, 2010. Against the rejection of the Section 5 application, two revisions have been filed. The revisionist has also challenged the ex-parte decree dated 12th August, 2010 by filing two separate revisions. All the four revisions have been clubbed and are being heard together. 3 Heard Sri Piyush Garg, the learned counsel for the revisionist and Sri Neeraj Garg, the learned counsel for the respondent. The learned counsel for the revisionist submitted that from a perusal of the order-sheet it is clear that the court below was in a hurry to dispose of the matter for reasons best known to the court and that the case was transferred and the first date fixed was 30th July, 2010, and ultimately the case was decreed on 12th August, 2010. The very nature of the movement of the case indicates that the court below was in a hurry to dispose of the matter. The learned counsel submitted that the applicant was not aware of the date fixed by the court below and that he came to know for the first time when the Amin visited the spot on 10th October, 2010 and only then came to know about the exparte decree. The learned counsel further submitted that the applicant was assured by his counsel that he need not worry and that as and when the date is intimated he would appear and protect his interest. The learned counsel submitted that the matter should be decided on merits and that the applicant should not be non-suited on the ground that his Advocate could not appear. On the other hand, the learned counsel for the opposite party submitted that the applicant was aware of the date fixed and deliberately chose not to appear and contest the matter and that the entire effort of the applicant was to scuttle the proceedings. The learned counsel further submitted that a perusal of the order sheet would indicate that the applicant was continuously getting the matter 4 adjourned and was doing his utmost best to ensure that the case was prolonged for one reason or the other. The learned counsel consequently submitted that the court below was justified in rejecting the application under Order 9 Rule 13 of the C.P.C. Having heard the submissions of the learned counsel for the parties, the Court finds that the case was transferred by an order dated 20th July, 2010 intimating the parties that the case would be listed on 30th July, 2010 before the transferee court. The applicant’s counsel received due notice and appeared on the date fixed before the transferee court on 30th July, 2010 and moved an application for adjournment, which was rejected and 6th August, 2010 was fixed as the next date. The applicant’s counsel was consequently aware of the next date fixed i.e. 6th August, 2010. The fact that the applicant was aware is fortified by the fact that the applicant himself appeared before the transferee court on 6th August, 2010 and filed an application for adjournment in person. This application was rejected by the trial court, but in the interest of justice, the trial court fixed 9th August, 2010 for the evidence of the defendant’s witness. On 9th August, 2010, neither the applicant nor his counsel appeared and consequently the matter proceeded exparte and a decree was passed on 12th August, 2010. This Court further finds that the judgment was applied by the applicant on 7th September, 2010, which goes to prove that the applicant was aware of the exparte decree and inspite of getting the copy of the judgment, did not file the application within the stipulated period, but waited for quite 5 some time and then filed the application under Order 9 Rule 13 of the C.P.C alongwith an application under Section 5 of the Limitation Act. The contention that the applicant came to know about the exparte decree on 8th October, 2010, is patently erroneous and an afterthought and the said date has been chosen in order to bring the application within the period of limitation. From the order sheet of the trial court it is clear that the applicant was aware when the case was transferred to the transferee court. The applicant’s counsel appeared and on a subsequent date the applicant himself appeared in person. Consequently, this Court is of the opinion that the applicant was aware of the proceedings and choose not to appear and prepared to watch the proceedings from outside. The entire effort of the applicant appears to scuttle the proceedings and to stall the hearing of the case for one reason or the other. In the light of the aforesaid, the court below was justified in rejecting the application under Section 5 of the Limitation Act holding that the applicant was aware of the proceedings. The submission of the learned counsel for the applicant that the applicant should not be made to suffer on the ground of any fault being committed by the Advocate, is no doubt true and in this regard the courts have been consistent with the view that the absence of the Advocate is not only unfair to his client but also unfair and discourteous to the court and that a party normally should not suffer on account of default of non-appearance of the Advocate. This principle has been enunciated by the 6 Supreme Court in 2009 AIR (SC) 514 in the matter of Secretary, Department of Horticulture, Chandigarh & another vs. Raghu Raj. No doubt, in our present adversary legal system, the parties generally appear through their Advocates. Once an Advocate is engaged and he is paid his fee, the Advocate has no right to remain absent from the court when the case of his client comes up for hearing. The Advocate is duty bound to attend the case or to make alternative arrangement in case he is unable to appear for one reason or the other. Non-appearance of the Advocate in the court without sufficient cause cannot be excused. In the present case, the applicant has blamed the exparte proceedings on the ground that his Advocate did not appear. The Court finds that such allegation has unfairly been levelled on the Advocate of the applicant. The applicant himself appeared and sought adjournment on the ground that his Advocate was out of station on 6th August, 2010. The application was rejected and the matter was adjourned. The applicant was aware of the next date fixed. There is nothing to indicate that the applicant had informed his Advocate and that the Advocate did not appear on the next date. There is nothing to indicate that the applicant did not find out about the date fixed from his Advocate. It is also the onerous duty of the applicant to be aware of the proceedings in his case and it is not sufficient to allege that he had left the matter at the hands of his Advocate and sat at home having being assured that nothing adverse would happen against him. 7 In the light of the aforesaid, this Court finds that neither the applicant nor his Advocate was fair to the court and the applicant and his Advocate deliberately chose not to appear before the court for the reasons best known to them. No doubt, the court is always of the opinion that the matter should be decided on merits and that full opportunity should be given to all the parties concerned, but in the present case, the conduct of the applicant makes it clear that he is not entitled for any relief. The order sheet indicates that in the past the applicant had tried to delay the proceedings by adopting all kinds of dilatory methods. The present one is another kind of a dilatory tactic which he adopted but not successful. The Court finds that the applicant had knowledge of the proceedings and did not choose to appear and consequently was not entitled to recall the order. The application under Section 5 of the Limitation Act and consequently the application under Order 9 Rule 13 of the C.P.C. was rightly rejected. The Court does not find any error in the impugned order. The revisions against the said order consequently fail and are dismissed. Insofar as the merit of the exparte decree is concerned, the only ground urged by Sri Piyush Garg, the learned counsel for the applicant is that, the suit was decreed on the basis of the statement given by the power of attorney holder of the opposite party and that the power of attorney holder could only act at the behest of the principal, but could not appear in the witness box on her behalf. In support of his submission, the learned counsel placed 8 reliance upon a decision of the Supreme Court in Janki Vashdeo Bhojwani and another vs. Indusind Bank Limited and another, AIR (SC) (2005) 439, wherein the Supreme Court, after considering the provision of Order 3 Rules 1 & 2 of the C.P.C., held that the power of attorney holder can only act on behalf of the principal, but could not depose on behalf of the principal. The Supreme Court, however, clarified that if the power of attorney holder had rendered some acts in pursuance to power of attorney, he could depose for the principal in respect of such acts which he had performed, but could not depose for the principal in respect of the matter which only the principal could have a personal knowledge. The Supreme Court held: “13. Order III Rules 1 and 2, CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2, CPC, confines only in respect of “acts’ done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross- examined.” In the light of the aforesaid decision of the Supreme Court, the learned counsel submitted that the power of attorney holder could not depose 9 that the applicant was in arrears of rent or could not depose about the validity of the notice sent by the opposite party to the applicant nor could the power of attorney holder depose that the signature appended in the notice was that of the opposite party since all these information were the personal knowledge of the opposite party and only the opposite party could appear and make such deposition and that such deposition could not be made on her behalf by a third party including the power of attorney holder. The submission of the learned counsel for the applicant appeared to be attractive in the first blush, but on a closer scrutiny, the Court finds that the submission is devoid of merit. In order to test the submission of the learned counsel for the applicant in the light of the principle evolved by the Supreme Court in the case of Janki Vashdeo Bhojwani (supra), the Court has perused the statement given by the power of attorney holder before the trial court and has also perused the power of attorney given in favour of the holder. The Court finds that the power of attorney was given to manage, control, supervise and look after all the properties in any State in India belonging to the opposite party. The said power of attorney gave a wide power to the power of attorney holder. The power of attorney holder further deposed that the applicant used to give rent to him and thereafter he used to deposit the same in the account of the opposite party and that when the applicant fell in arrears of rent, the notice terminating the tenancy was issued by the opposite party on the instructions 10 given by him and that the opposite party had signed the notice in his presence. These facts which the power of attorney holder deposed was in his personal knowledge which he could depose since he had performed such acts on behalf of the principal. The Supreme Court has categorically stated that the power of attorney holder may depose for the principal in respect of such acts which he has rendered in pursuance to execution of the power of attorney in his favour, but could not depose for the principal for the acts done by the principal and not by him. In my opinion, the deposition made by the power of attorney holder clearly indicates that he had deposed only those things for the acts which he had done himself and which had not been done by the principal. In the light of the aforesaid, the contention of the learned counsel for the applicant that the deposition of the power of attorney holder could not be taken into consideration as a valid piece of evidence, is patently erroneous. No other ground was raised to challenge the decree passed by the trial court. Consequently, the revisions challenging the decree also fail and are dismissed. In the light of the aforesaid, all the revisions are dismissed. Parties are directed to bear their own cost. After the aforesaid order was passed, the learned counsel for the applicant prayed that some reasonable time may be granted to the applicant to vacate the premises in question. Since the applicant is carrying on his business from the shops in question, the Court finds that the time till 31st 11 March, 2011, would be sufficient to handover vacant and peaceful possession. Consequently, the Court grants time till 31st March, 2011, to handover vacant and peaceful possession to the opposite party provided he deposits the entire decretal amount, if not deposited, on or before 15th January, 2011, and also deposits the advance rent till March, 2011, on or before 15th January, 2011. In case of default, this portion of the order shall stand automatically vacated and it would be open to the opposite party to proceed with the eviction of the applicant. (Tarun Agarwala, J.) 21-12-2010 Salim/