Madhya Pradesh High Court
Pradyumn Shastri vs Pappu on 23 August, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 23rd OF AUGUST, 2022
WP-27414-2019
Between:-
PRADYUMN SHASTRI S/O LATE SHRI
PRABHUKANT SHASTRI, AGED ABOUT 48
Y E A R S , OCCUPATION: OWNER RASRANG
SWEETS NAMKEEN R/O 85/1, SHAKTI NAGAR,
BHOPAL, M.P. (MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAJNEESH GUPTA, ADVOCATE)
AND
1. PAPPU S/O BHERU SINGH R/O VILLAGE
RAMPURAJAGIR, TEHSIL SHAMSHABAD, P.S.
SHAMSHABAD, DISTT. VIDISHA, M.P. (MADHYA
PRADESH)
2. SMT.PHOOLA BAI W/O PAPPU SINGH VILLAGE
RAMPURAJAGIR TEHSIL SHAMSHABAD PS
SHAMSHABAD (MADHYA PRADESH)
3. BHOORA S/O PAPPU SINGH VILLAGE
RAMPURAJAGIR TEHSIL SHAMSHABAD PS
SHAMSHABAD (MADHYA PRADESH)
4. DHARMENDRA S/O PAPPU SINGH VILLAGE
RAMPURAJAGIR TEHSIL SHAMSHABAD PS
SHAMSHABAD (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT KUMAR PANDEY, ADVOCATE)
WRIT PETITION No. 27434 of 2019
Between:-
Signature Not Verified
PRADYUMN SHASTRI S/O LATE SHRI
PRABHUKANT SHASTRI, AGED ABOUT 48
SAN
Digitally signed by AMIT JAIN
Y E A R S , OCCUPATION: OWNER RASRANG
Date: 2022.08.25 16:59:42 IST
SWEETS NAMKEEN 85/1 SHAKTI NAGAR
BHOPAL (MADHYA PRADESH)
2
.....PETITIONER
(BY SHRI RAJNEESH GUPTA, ADVOCATE)
AND
SMT. NARAYANI BAI W/O LATE SHRI TIKAM
SINGH, AGED ABOUT 65 YEARS, VILLAGE
RAMPURA JAGIR TEHSIL SHAMSHABAD P.S.
SHAMSHABAD (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT KUMAR PANDEY, ADVOCATE)
These writ petitions coming up for hearing this day, the court passed
the following:
ORDER
These writ petitions originate out of the order dated 4.12.2019 passed by the Commissioner under Workman Compensation Act-cum-Labour Court No.1 Bhopal in Case No28/2013-WCF and Case No.29/2013-WCF where the awards were passed by learned Commissioner under Workman Compensation Act, 1923 on 7.3.2019 in favour of the workman. Thereafter, an application was filed on behalf of the employer under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure, 1908 (for short "C.P.C") seeking setting aside of the order dated 7.3.2019 on the ground that though the employer had filed an affidavit in support of his evidence but could not appear due to non- communication of the subsequent dates by his counsel Shri Rakesh Das, as a result of which, he was proceeded ex-parte and, therefore, sought setting aside of the ex-parte order, which is refused by the learned Commissioner under Workman Compensation Act vide order dated 4.12.2019 and hence these writ petitions.
Signature Not Verified SANI have perused the impugned order dated 4.12.2019.
Digitally signed by AMIT JAIN Date: 2022.08.25 16:59:42 ISTShri Rajneesh Gupta, learned counsel for the petitioner has raised a 3 singular argument that it is because of the negligence of the counsel, the petitioner could not appear and, therefore, he should not be penalized.
Shri Rajneesh Gupta, learned counsel for the petitioner is asked that what is the procedure adopted in his office i.e. whether, he solicits a client and contacts him for every minute detail or his client approaches him, he fairly admits that it is the client, who has to approach a counsel.
When Shri Rajneesh Gupta, learned counsel for the petitioner is asked that if learned counsel for the petitioner was negligent then whether any action is initiated before the Bar Council concerned for deficiencies of service, he fairly admits that no such action is initiated against the counsel.
Shri Amit Kumar Pandey, learned counsel for the respondents/claimants, on the other hand, submits that the present case has a chequered history. The plea of counsel's negligence is infact incorrect. Drawing attention of this Court to the order sheet dated 24.3.2014 before the learned Labour Court, it is pointed out that the case was fixed for filing of written statement but as nobody had appeared for the non-applicant (petitioner herein), therefore, vide order dated 24.3.2014, the right to file reply was closed and the non-applicant (petitioner herein) was proceeded ex-parte.
On 28.4.2014, one Smt.Mala Sanyal, Advocate had appeared for the non-applicant (petitioner herein) and had filed an application under Order IX Rule 7 of the C.P.C alongwith Vakalatnama but the aforesaid application was disposed. Thereafter, vide order dated 19.2.2015, the reply was taken on record with a view to avoid delay and the issues were framed. Another application was Signature Not Verified SAN filed on the ground that learned counsel could not appear appear before the Digitally signed by AMIT JAIN Date: 2022.08.25 16:59:42 IST Court on 14.9.2015 as his father is 70 years of age and suffering from paralysis 4 and taking this humanitarian aspect into consideration, vide order dated 18.3.2016, ex-parte proceedings drawn on 14.9.2015 were set aside on payment of cost of Rs.100/-.
It has come on record and has been discussed by the Labour Court that the non-applicant (petitioner herein) had received notice of the claim petition and had filed his Vakalatnama. Thereafter, though belatedly reply was filed and the issues were framed. The evidence was led by the claimants and thereafter the non-applicant (petitioner herein) had filed his affidavit in support of his evidence but it is evident from the order sheet dated 12.10.2018 that the non- applicant's counsel was absent when the case was fixed for recording of evidence of defendant and his witnesses. The Labour Court had adjourned the matter for 19.12.2018 for the non-applicant's evidence. On 19.12.2018 also, nobody appeared for the non-applicant despite repeated calls, he was proceeded ex-parte. Thereafter, the arguments were heard and the case was decided.
Thus, it is evident that the case was adjourned for recording the evidence of the non-applicant on 22.3.2018 and thereafter the affidavit under Order XVIII Rule 4 of the C.P.C was filed on 8.5.2018. The time was sought on 5.6.2018. On 24.7.2018, the Presiding Officer was on leave. On 7.9.2018, the case was fixed for recording the evidence of the non-applicant on 12.10.2018. On 12.10.2018, nobody appeared. On 19.12.2018, they were proceeded ex-parte. Thereafter, the case was fixed on 18.1.2019, 12.2.2019, 25.2.2019.
No sufficient cause is shown by learned counsel for the petitioner for setting aside the ex-parte order. In absence of any sufficient cause and Signature Not Verified SAN continuing negligence on the part of the non-applicant (petitioner herein) as Digitally signed by AMIT JAIN Date: 2022.08.25 16:59:42 IST discussed above where he was proceeded ex-parte twice finally proceeding ex-
5parte on 19.12.2018 and fixing the case for argument, it is evident that the petitioner is not entitled to make a capital out of his own negligence and, therefore, when there are no cogent grounds for non-appearance of the counsel, the application under Order IX rule 13 of the C.P.C cannot be said to be arbitrarily rejected by the Labour Court calling for any interference by this Court in these writ petitions.
Accordingly, this writ petitions fail and are dismissed.
(VIVEK AGARWAL) JUDGE amit Signature Not Verified SAN Digitally signed by AMIT JAIN Date: 2022.08.25 16:59:42 IST