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Jasdeep Singh v. Gurnam Kaur & Ors - CR-6910-2005 [2006] RD-P&H 2001 (27 March 2006)

CR No.6910 of 2005 1

Jasdeep Singh vs. Gurnam Kaur and others * * *

Present: Mr. D.K. Bali, Sr. Advocate with Mr. Salil Bali, Advocate for the petitioner.

* * *


This revision petition has been filed against the order dated 8.10.2005 whereby the application of defendant-respondent No.2 under order 9 Rule 7 of the Code of Civil Procedure ('CPC' for short) has been allowed and the order dated 12.3.2003 proceeding ex parte against her has been set aside. She has been consequently allowed to contest the suit filed by the plaintiff-petitioner.

The plaintiff-petitioner filed a suit for declaration that he and defendants No.3 to 5 in the suit who are his brothers, are owners in possession in equal shares of land measuring 40 acres 0 kanal 5 marlas which was previously owned by their father Meghar Singh as co-sharer. The claim was based on a Will executed by Meghar Singh, father of the plaintiff and defendants No.2 to 5 and husband of defendant No.1. Meghar Singh died on 14.2.1998. Therefore, it was claimed that all the sons of Meghar Singh were entitled to 1/4th share of his estate on the basis of the Will. The suit was contested by Sukhwinder Kaur (defendant CR No.6910 of 2005 2

No.2), the sister of the plaintiff-petitioner and also defendants No.3 to 5.

However, during the proceedings of the case on 12.3.2005, her counsel had pleaded no instructions on her behalf and consequently she was proceeded against exparte. After about more than 7 months, she filed an application for setting aside the ex parte order which has been allowed by the impugned order and has been assailed by the plaintiff-petitioner.

Learned senior counsel appearing for the petitioner submits that the contract between the defendant-respondent No.2 and her counsel did not terminate by the counsel merely pleading no instructions. In fact it is contended that in terms of Order 3 Rule 4 (2) CPC it is deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. Therefore, it is contended that the ground of her absence and consequent, setting aside of the ex parte proceedings is clearly not made out.

I have given my thoughtful consideration to the contentions raised by the learned senior counsel. However, it may appropriately be noticed that the defendant-respondent No.2 had indeed engaged a counsel for representing her and he pleaded no instructions. For this the defendant-respondent No.2 is not liable to suffer. Under the present adversary legal system, a party generally CR No.6910 of 2005 3

engages a counsel and appears through him. After engaging a counsel, the party remains confident that his counsel would watch his interest. Therefore, defendant-respondent No.2, having done that she is not liable to suffer in case the counsel pleaded no instructions in the case. Even otherwise, the said provisions referred to by the learned senior counsel are procedural in nature and their object is to secure justice and not to thwart it. Therefore, the defendant-respondent No.2.

having been granted liberty to contest the case on merits, it would be quite improper to interfere with the order in exercise of the revisional jurisdiction of this Court under Article 227 of the Constitution of India.

For the foregoing reasons, there is no merit in this petition and the same is accordingly dismissed.

December 23, 2005 (S.S. SARON)



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