TMI Blog1993 (2) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 Rule 16 C.P.C. On 19th May, 1988 the City Civil Court had passed an order on the said applications observing that the said applications shall be considered at the final hearing of the suit. According to the defendant (as per his statement made in the application filed by him for setting aside the ex-parte decree) his advocate advised him that he need not be present at the hearing of the suit on 9.6.1988, and thereafter till the applications filed by him under Order 14 Rule 5 and Order 6 Rule 16 CPC are disposed of. Be that as it may, on 9th June, ] 988, the advocate for the defendant prayed for an adjournment till the next day. It was adjourned accordingly. On June 10, neither the advocate for the defendant nor the defendant appeared, with the result the defendant was set ex parte. Hearing of the suit was commenced and concluded on 11th June, 1988. The suit was posted for delivery of judgment to June 13, 1988. On June 11, 1988, an application was made on behalf of the defendant stating the circumstances in which his advocate had to retire from the case. This application, however, contained no prayer whatsoever. The suit was decreed ex parte on 13th June, 1988. Thereafter the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Supreme Court or in disobedience of a clear judgment of the Supreme Court, it would be treated as non-est and absolutely without jurisdiction .... when our attention has been drawn that our judgment is per incuriam, it is our duty to apply this decision and to hold that our judgment was wrong and liable to be recalled . (We express no opinion on the correctness of the above premise since it is not put in issue in this appeal.) Accordingly, the Division Bench heard the counsel for the parties and by its judgment and order dated 3rd March, 1992 allowed the appeal mainly relying upon the decision of this Court in Rafiq. 4. In this appeal Shri Ganguli, learned counsel for the appellant/plaintiff submitted that the decision in Rafiq does not support the defendant's case and that the Calcutta High Court has erred in holding otherwise. It is submitted that the defendant in this case is a private limited company, managed by persons who are not only well-educated but are practical businessmen unlike the appellant in Rafiq who was a rustic innocent villager placing his entire trust in his advocate. On the other hand, Shri Santosh Hegde, the learned Counsel for the defendant/res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, which should not be encouraged. While expressing no opinion upon the existence or justification of such practice, the learned Judge observed that if the dismissal order is not set aside the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented, and then made the following further observations: The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. 7. The question is whether the principle of the said decision comes to the rescue of the defendant respondent herein. Firstly, in the case before us it was not an appeal preferred by an outstation litigant but a suit which was posted for final hearing sever years after the institution of the suit. The defendant is a private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The learned advocate in his deposition stated that he did not file an application for adjournment on 9th June, 1988. But from the record it was evident that it was on the basis of the application filed on 9th June, 1988, the case was adjourned for cross-examination of the witnesses whose examination was called on the next date. The above facts stated in the deposition of the advocate show that he indeed made an application for adjournment on the 9th June, 1988 to enable him to cross examine the witnesses on the next date. Therefore, his present stand that he advised his client not to participate in the trial from and including 9th June, 1988 onwards is evidently untrue. We are, therefore, of the opinion that the story set up by the defendant in his application under Order 9 Rule 13 is an after-thought and ought not to have been accepted by the Division Bench in its order dated 3rd March, 1992 - more particularly when it had rejected the very case in its earlier Judgment dated 8.7.1991. 8. The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statements of the principal i.e. the party who engaged him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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