Judgment:
ORDER
VIKRAMAJIT SEN, J.
1. An eviction petition on the grounds of subletting was filed almost three decades ago, on 21.11.1972. It was decided in favor of the Landlord by the Additional Rent Controller in 1985. The Tenant's appeal was allowed by the Rent Control Tribunal in July 1987. The present Second Appeal was admitted on 15.12.87. Thereafter, although this Appeal was listed on 24 occasions, not once has anyone entered appearance for any of the Respondents. A vakalatnama was filed on behalf of Respondent No.1 presumably in February 1988. Respondent No.4 had to be served through publication in the Statesman for the hearing scheduled for 11.3.1996 at 11 a.m. (Actual), but there was still no appearance for this Respondent or any of the other Respondents, on that date.
2. The case set out by the Respondents in these applications is that their Counsel did not appear on 11.9.2000 since their names were not mentioned in the Cause List for that date. They came to know of the passing of the orders accepting/allowing the appeal on an inspection of the Court records on 12.10.2000, apparently by Shri K.J.S. Kalra, Advocate. This exercise was allegedly carried out because the tenant had heard 'whispers from the side of the landlord that the Respondent had been directed to vacate the demise premises on the expiry of the 15 days.' The vakalatnama of Respondents in favor of Mr. Kalra is dated 24.10.2000 that is after the inspection was carried out. In the application for condensation of delay in filing the application for rehearing the appeal, it has been averred that though no delay has occurred, the application has been filed in abundant caution. It has also been sanguinely stated that the Respondents have 'been absolutely vigilant and diligent in prosecuting the case. ' All these allegations have been denied by the Appellants. Mr. A.P.S. Ahluwalia has relied on the decisions rendered in Jainarian Singh vs . Lachmi Prasad, : AIR1949Pat502 , Gursharan Kaur v. Ram Chandra, 24 (1983) DLT 18 and Lalit Mohan Puri v. Pure Drink Ltd., 1994 RLR 483.
3. In Jainarain's case (supra) notice of the appeal had been served on 20.5.1947, intimating that the case would be heard on 28.7.1947, and the vakalatnama was filed five days prior to that date, that is, on 23.7.1947. The name of the Advocate was shown in the Weekly List but not in the Daily List. The Single Judge observed as follows:
'In the circumstances of the present case, I am inclined to take the view that this application is founded upon the ground that the notice of the appeal was not duly served. Regard being had to the rules and practice of the Court on the subject, it seems clear that the notice of the appeal pending before this Court which is issued ordinarily is merely a notice that the appeal will be heard on the date mentioned in the original notice or on any date thereafter of which a fresh notice will be given to him, by means of a cause list, that the case is to be heard on a particular date. It is well known that cases in this Court are never heard on the date for which they are notified to be heard in the original notice which is sent to the respondent. What is expected of the respondent in response to that notice is that he should come and engage an Advocate and file a vakalatnama so that it may be possible for this Court to give notice to that Advocate of the actual date of the hearing of the appeal. The cause list which is published is such a notice. If an appeal is heard without mentioning it in the daily cause list, it cannot but be held that that appeal has been heard in the absence of the respondent who was not duly served. Similarly, if in the cause list the name of the Advocate for the respondent is not mentioned, it must amount to having issued a notice without designating the person to whom the notice is issued. Such a notice is incapable of being served, much less of being duly served.'
4. In the present case however, the Advocate did little more than filing the vakalatnama on behalf of Respondent No.1. The Respondents were not represented even once, on any of the numerous occasions when the case was listed before the Deputy Registrar or Joint Registrar or even on 24.8.2000 when the Appeal was listed before Court for final disposal. The Rules applicable to the case are different to these existing in Patna, as will be seen below; hence this case is not of much assistance.
5. I am also unable to appreciate the relevance of the decision of the Hon'ble Division Bench of this Court in Gursharan Kaur's case which was pending on the Original Side. The present Second Appeal, it should be borne in mind, was listed for hearing in the Regular List, in accordance with its antiquity to the date of admission under Rule 6 of Chapter 3 of Volume V of the High Court Rules and Order. It was not listed out of its turn. The party, or at least its Advocate, is expected to keep a watch/track of cases according to the age of the matters which are posted on the Regular List. This duty is incorporated in the succeeding Rule 8 which requires and enjoins the parties and their Advocate to attend the Court on the day or days for which their cases are set down, and on subsequent days until their cases are disposed of or are postponed. The Division Bench held as follows:
' The order of the Deputy Registrar dated 21.11.1977 no doubt directed the listing of the three objection-petitions on 28.11.1977 and I.A. 3062/77 on 8.12.1977. But a perusal of the order of the Deputy Registrar shows that the matter was being directed to be listed before the court on 28.11.1977 because defendants Nos. 2,3 & 4 had failed to complete admission/denial of documents filed on behalf of the plaintiff till then. As already mentioned so far as the present appellant, defendant No.5, was concerned, this formality had been completed. The appellant could, thereforee, have bonafide believed that on the date of hearing fixed by the Deputy Registrar, namely, 28.11.1977 no appearance on her behalf was necessary before the court as the matter had only been listed for directions regarding the default of defendants 2,3 & 4 and not regular hearing, particularly as the application for amendment of the objections was still being processed. Perhaps this belief was confirmed when admittedly the cases were not found by counsel in the regular list issued for that date, i.e. 28.11.1977. It is true that the case was listed on 19.11.1977 and the name of the counsel for the appellant was also shown in the cause list but the point made on behalf of the appellant was that, having regard to the practice of the original side of fixed dates being given, the counsel looked up the cause list of 18.11.1977 and as the list received by him did not contain the name of the case and the counsel, he thought that the matters had not been fixed for hearing and that they would come up some time later. This belief was presumably confirmed because so far as the appellant was concerned her application for amendment of the objections had been directed to be listed on 8.12.1977. Again, the case did not appear on 8.12.1977. The reason for this is not known. Had it been listed on 8.12.1977 it might have been posted on 13.12.1977 along with the regular petition and the learned Judge might have been made aware of the existence of this amendment application. But as matters transpired, the application was not listed on 8th December, 1977. In the meantime, the objection petitions had been dismissed for default on 29.11.1977 and the learned Judge had given a date for the hearing of the petition of which the appellant was not aware. In the circumstances of the present case there was sufficient cause for the failure of the appellant to have been present before the learned Judge on 28.11.1977 as well as on 29.11.1977. The position on 28.11.1977 was that the appellant was under an impression that the matter was being listed before the court for a limited purpose and not for hearing. That apart, the case did not appear in the cause list to the knowledge of the counsel. Thus in the somewhat peculiar circumstances a good deal of confusion had been created in the minds of the appellant and the counsel and the counsel and that in the circumstances there was sufficient cause for the failure of the appellant to be present when the cases were called on 28.11.1977. In our opinion, thereforee, the order dismissing the applications for default on 29.11.1977 should be set aside. This automatically results in the setting aside of the ex-parte decree dated 13.12.1977 as well.'
6. Lalit Mohan Puri's case (supra) is also of no assistance to the Respondent since it had been held therein that sufficient cause had not been shown, but on the strength of precedents to the effect that a party should not suffer for his Advocates neglect, relief was granted. No doubt, it had been noticed by the Court that the name of the Advocate had been mentioned, but this, per se, would not lead to the conclusion that the Division Bench had held that if the names are not so mentioned, the judgment would be vulnerable to recall on that short ground.
7. The conduct of the Respondent and the Advocate is cavalier, lackadaisical and negligent; not once has any person bothered to appear in the case. Respondent No.4 was served through publication. The next date had being shown as 'actual' in the newspaper but still there was no appearance on his behalf. The applications have not been supported by the affidavits of the Advocate whose vakalatnama was on the file. This was essential since it is only this person who could have deposed that the Appeal could not be traced/noticed because of the failure to mention his name in the Regular Cause List. The affidavit of Respondent No.1 is of no advantage since he was either unaware of these facts, or if aware, had knowledge of the listing and hence can scarcely fasten the blame on his Advocate alone. It must also be kept in mind that the Appeal was actually taken up for hearing on 24.8.2000, but adjourned, quite obviously in the interest of justice, because of the absence of the Respondents. Courts cannot be impervious to the plight of the litigant who has already spent time, effort and money over a period spanning three decades. It would be a travesty of the legal system if a rehearing is allowed to a party who has manifested and intentional default in appearance and exhibited negligence, if not malafides. The Court ought not to set aside a judgment unless strong grounds, clearly establishing sufficient cause for the non-appearance of a diligent party are disclosed. No such case has been made out and on these submissions alone I would dismiss all the applications, with costs.
8. Should the application be allowed because any of the extant Rules, to which the Respondents and their Counsel are oblivious. A similar situation had occurred in the case of Smt. Rama Vanti v. Smt. Bal Kaur, 1968 70 PLR 357, which was decided by a Division Bench of the Punjab and Haryana High Court. In this case Rule 19 of Order XLI of the Code of Civil Procedure has been quoted, but since the Appeal has been heard in the present instance, reference instead should be made to Rule 21, which deals with a rehearing in similar circumstances. The following passage in Rama Vanti's case (supra) deserves reproduction:
'This appeal has been contested by the respondent. Her learned counsel Shri Ram Rang has not been able to question any of the facts stated above, but has merely argued on the authority of the Lahore High Court in the Hanuman Chamber of Commerce Ltd., Delhi v. Messers R.B. Seth Jassa Ram Hira Nand, that in a Letters patent appeal interference with the exercise of discretion by a learned Single Judge should not be resorted to unless the discretion is found to have been exercised arbitrarily. Counsel is no doubt right in his submission, but the argument has no application to the present case as rule 19 of Order 41 of the Code which is quoted below, does not vest any discretion in a Court:-
'Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 or rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.'
'As soon as the Court is satisfied that an appellant was prevented by any sufficient cause from appearing in Court when his/her appeal was called on for hearing, the Court is bound to re-admit the appeal on such terms as to costs or otherwise as it thinks fit. There is, thereforee, no question of exercise of any discretion by the learned Single Judge in this case. From a perusal of the above said record which does not appear to have been placed before the learned Single Judge, we are satisfied that the appellant was prevented by sufficient cause from appearing when her execution first appeal was called for hearing on October 15, 1965. It is the duty of the Registry of the Court (vide rule 8 of Chapter 3-A of Volume V of the Rules and Orders of this Court) to issue notices to parties who are not represented by counsel by registered A.D. post and to send the same 'to an address as given by the appellant in the memorandum of appeal'. It is the posting of only such a postcard which is deemed to be sufficient intimation to the party of the date fixed in the case. The first proviso to rule 8 referred to above is in the following terms:-'
'Provided that intimation of the pacca date fixed in a case will be sent by registered postcard (A.D.) to such parties as are not represented by counsel. Such postcard shall be sent to an address to be given by the party in response to the original notice of appeal calling upon him to furnish an address for service for the purposes of the appeal, or if he fails to give such address within one month of the service of such notice of appeal, to his address as given by the appellant in the memorandum of appeal. The posting of such postcard shall be deemed to be sufficient intimation to the party of the date fixed in the case.'
9. On considering a similar application, and without reference to this decision and Rules the applicable of this Court, Dalip K. Kapoor, J. had set aside an ex parte judgment, and had also declined to award costs. The learned Judge in the case entitled as Risal Singh v. Indraj 1974 (76) PLR 60 has observed as follows:
'It is, however, contended by the learned counsel for the appellants that the conditions of Order 41 Rule 21 are not satisfied in this case. It is submitted that the notice referred to in this rule is the notice specified in Order 41 Rule 21 of the Code, and the 'sufficient cause' which is mentioned in this rule does not include the non-service of the registered postcard. I do not think this submission is correct. I shall shortly state my reasons.'
'In Order 41 Rule 17(2) it is provided that if the appellant appears and the respondents does not appear the appeal shall be heard-exparte. Now a respondent can only appear on a given date if he has some intimation that that particular date is the date of hearing. The practice and procedure of this court, as adopted from the Lahore High Court, is that there is a running list. As far as cases in which counsel are engaged are concerned, the learned counsel are themselves able to represent the party concerned on the date fixed because they have the running cause lists and weekly and daily cause lists of the court available which intimate the date of hearing to them. As far as parties who are not represented by the counsel are concerned, the date has to be intimated to such party by some means, and if it is not intimated the party concerned cannot possibly appear in court.'
'There are two ways in which the date of hearing can be fixed. The date can be fixed at the initial or preliminary hearing of the appeal, when an order under Order 41 Rule 11 is passed admitting the appeal. In such a case the appellate court can fix a date of hearing under Order 41 Rule 12, and if this is done this date has to be intimated to the respondent who is thus required to appear on that date and if he does not appear then the proceedings may be taken ex parte against him. This is also the procedure followed in civil suits. However, the practice in this court in appeals has been that the initial date is fixed by the Deputy Registrar or by the court office, as a 'Farzi' or tentative date. If the party has engaged a lawyer there is no further need to intimate the actual date of hearing to the party concerned. If, however, no counsel is engaged, then the actual date of hearing has to be conveyed to the party concerned, otherwise there will be non-compliance with Rules 12,14, 15 and 17 of Order 41 of the Code. This means that the non-service of the actual date notice really amounts to non-service of the notice intimating the date of hearing of the appeal to the respondents. It is not sufficient, in my view, for the respondent to be informed that an appeal has been filed against him. He has also to be informed of the date on which the appeal has to be heard and also informed that if he is not present on that day he may be penalised by an ex-parte decision being passed against. If the precise date is not intimated to him, he cannot be penalised. If the actual date notice had been sent in the prescribed form by a postcard duly addressed to the respondent it would have been an intimation of the date of actual hearing even if the postcard had not been received by the respondent and had only been received or seen by the members of his household or some other person connected with him. In the present case, there is no material at all to show that the respondent ever knew of the date of hearing. It cannot thereforee be denied that the respondent had at least sufficient clause for not appearing on the date fixed for the hearing. It is contended by the counsel for the appellant that the words used in Order 41 Rule 20 read as follows:-
'If he satisfies the Court that notice was not served or that he was prevented by sufficient cause to appear when the appeal was fixed for hearing.'
'According to the counsel for the appellant these words referred only to the initial notice served under Order 41 Rules 12 and 14 and not any later notice. Of course, if the actual date had been fixed in the initial notice and the case had been fixed on that date and the matter adjourned, this argument would be irrefutable. Unfortunately, the initial notice in this case fixed 30th August, 1965, as the date of hearing: it was served on the respondent who did not engage a counsel. The case was not at all fixed before Court on that date but was placed before the Court on 23rd September, 1971. There is an office order on the record which runs as follows:-
'To be heard on 30th August, 1965 by a single bench and issue notices.'
'For some reasons the case was never set down for hearing on 30th August, 1965 but was fixed on 23rd September, 1971. Obviously, a person who has been served with a notice to appear on 30th August, 1965 cannot possibly appear on 11th October, 1971, when the appeal was actually heard unless he is informed of this fact. He cannot be expected to enquire from the court periodically for over a period of six years as to when his case has to be heard. It, thereforee, seems to me that this rule which deals with 'sufficient cause' for non-appearance, certainly applies to this case and thereforee the ex-parte decision in the appeal has to be set aside and the appeal has to be set down for re-hearing.'
10. I shall now return to the facts of the present case. As noticed above there is no affidavit filed by the first Advocate stating therein that he failed to appear in the Appeal although it had been shown in the Regular List because his name was not mentioned. The Advocate's name may not have been mentioned because he had not appeared in any of the hearings and had done little more than merely filing his vakalatnama. The Rules expect Advocates to duly follow these cases. It has become epidemic for parties to cast the blame on their lawyer since in some cases relief has been granted on this ground. No complaint against the previous counsel appears to have been filed before the Bar Council. The Court must assume, in the absence of such a complaint, that the default ascribed to the Advocate is a make-belief. The negligence of the Respondents, whether intended or accidental, is writ large in the present case. Although these applications state that they have been filed on behalf of Respondents, they have been signed only by Respondent No.1 and are accompanied by the affidavits of this party. Vakalatnama has also only been filed on behalf of Respondent No.1. On the strength of the ratio set down by Dalip K. Kapoor J., and in consonance with the Rules, the Advocate for Respondent No.1 was duty bound and expected to be aware of the listing of the Appeal. As regards the other Respondents, there is no representation on their behalf at all. As has been seen Respondent No.4 had been served by publication for an actual date of hearing but failed to put in appearance.
11. In these circumstances I am of the view that Respondent No.1 has failed to disclose sufficient cause which prevented him from appearing when the Appeal was called on for hearing. Because of indulgence shown by the Court applications of this genre are filed and have to be heard. Valuable time of the Court, already in short supply, is taken up in hearing these applications. This time could well have been spent in hearing the arguments of Respondent No.1 if he had been diligent. I cannot ignore the hapless litigant who has prosecuted his case for almost thirty years. Both the applications are accordingly dismissed with costs of Rs.5000/-.