Govind Agrawal Vs Smt. Pushpa Bai

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2024:CGHC:46648

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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WP227 No. 87 of 2023

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1 - Govind Agrawal S/o Kedarnath Agrawal Aged About 47 Years R/o Near Bus Stand Sarsinva, Police Station Sarsinva, Tahsil Bilaigarh, District : BalodabazarBhathapara, Chhattisgarh.

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... Petitioner.

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versus

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1 - Smt. Pushpa Bai W/o Late Pradeep Patel Aged About 32 Years.

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2 - Kumari Veena Patel D/o Late Pradeep Patel Aged About 12 Years.

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3 - Devraj Patel S/o Late Pradeep Patel Aged About 10 Years.

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(Respondent No.2 and 3 are Minor Through Natural Guardian Mother

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Smt. Pushpa Bai Wife Of Late Pradeep Patel).

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4 - Smt. Sohadra Bai W/o Late Narayan Patel Aged About 60 Years.

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All are R/o Village Charmudiya, Post Charmudiya, Police Station And Tahsil Kurud, District - Dhamtari, Chhattisgarh.

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... Respondents.

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For Petitioner	: Shri Praveen Dhurandhar, Advocate.
For Respondents	: Shri Bharat Rajput, Advocate.

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Hon'ble Shri Justice Deepak Kumar Tiwari

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Order On Board

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27/11/2024

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This petition has been filed under Article 227 of the Constitution of India against the order dated 29.11.2019 whereby, an ex-parte award has been passed in Case No.4/WCAct/2015/Fatal by the Commissioner for Workmen’s Compensation Labour Court, Mahasamund (C.G.) and against the order dated 01.10.2022, whereby application preferred by petitioner under Order 9 Rule 13 Civil Procedure Code (henceforth “CPC”) has been dismissed in Case No.17/WC Act/2021/Misc.

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Necessary facts of the case are that respondents/claimants have preferred a claim petition under Section 22 of the Employee’s Compensation Act on account of death of deceased Pradeep Patel, who allegedly died under the employment of petitioner. Petitioner duly engaged an advocate and written statement has also been filed by him on 09.02.2016. Thereafter an ex parte proceeding has been drawn and finally on 29.11.2019, an ex parte award has been passed. To set aside the aforesaid ex parte award, an application under Order 9 Rule 13 CPC has been preferred but the same has been dismissed. Hence this petition.

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Learned counsel for the petitioner would submit that it is well settled that a party should not suffer for the mistake of their counsel as it cannot be expected from the litigant to be present on every date of hearing. He would further submit that as the lawyer remained absent on the dates of hearing and had neither participated in the aforesaid proceeding nor

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informed the petitioner that ex parte award has been passed, therefore the petitioner has shown sufficient cause for his non-appearance. He would place reliance in the matter of Rafiq and another vs. Munshi Lal and

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another {(1981) 2 SCC 788}.

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Placing reliance in the aforesaid dictum, this Court in WP(227) No.58 of 2022 (Sakundram vs. Rupsingh) held that normally party should not suffer on account of default or non appearance of the advocate.

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Per contra, learned counsel for the respondents would submit that petitioner has been duly served and he has also filed written statement but to be updated with the case, he has not contacted the concerned lawyer, therefore, negligence lies on the part of the petitioner himself. He would further submit that ex parte proceeding was drawn way back in the year 2017 and thereafter an ex parte award has been passed in the year 2019. On 04.10.2021, petitioner moved an application to set aside the ex parte award after a delay of more than 2 years. He would further submit that the manner in which petitioner has shown his conduct itself shows that he is not bonafide.

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Replying the submission made by learned counsel for the respondents, learned counsel for the petitioner would submit that petitioner came to know about the impugned award after receiving execution notice on 26.08.2021. Thereafter the petitioner contacted his lawyer and when he did not receive a satisfactory reply, he moved an application to set aside the ex parte award after obtaining the certified copy.

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Learned counsel for the petitioner would further submit that at the time of accident, the offending vehicle was registered as well as was duly insured in the name of Rajesh Kumar Agrawal and to that effect document

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has been annexed with this petition. He would further submit that in this regard pleading has also been made in the main petition.

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I have heard learned counsel for the parties and perused the documents annexed with the petition carefully.

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It is well settled that an advocate has no right to remain absent from Court when the case of his client comes up for hearing. He is duty bound to attend the case in Court or to make an alternative arrangement. Nonappearance in Court without ‘sufficient cause’ cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the Court and can never be countenanced. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to appear, normally, a party should not suffer on account of default or non-appearance on the part of the advocate.

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Taking into consideration the aforesaid aspect, this Court is of the view that impugned orders are liable to be set aside with suitable cost. This Court deems it appropriate to impose cost of Rs.25,000/- which shall be paid to the respondents through their lawyer within a period of 21 days from the date of receipt of a copy of this order. Ordered accordingly.

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10.Upon deposit/payment of the aforesaid cost, the concerned labour Court shall afford an opportunity of hearing to the petitioner.

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11.Accordingly, ex parte award passed on 29.11.2019 is set aside and application under Order 9 Rule 13 CPC which was rejected vide order dated 01.10.2022, is allowed.

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12.Both the parties shall remain present before the concerned Labour Court on 03.01.2025.

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13.This Court hopes and trusts that the concerned court shall decide the matter in an expeditious manner preferably within an outer limit of 8 months from the date of receipt of a copy of this order.

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With the aforesaid observation/direction, this Petition is disposed of.

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Sd/-

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(Deepak Kumar Tiwari)

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Judge

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Avinash

Govind Agrawal v. Smt. Pushpa Bai

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Govind Agrawal v. Smt. Pushpa Bai

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