JUDGMENT
A.C. Goyal, J.
1. This is the revision under Section 115 C.P.C. filed by the defendant-petitioner Ladu Ram against the order dated 10.1.2003, whereby learned Additional District Judge No. 5, Jaipur City, Jaipur, affirmed the order dated 29.4.2000 by which Additional Civil Judge (West), Jaipur City, Jaipur, dismissed the application under Order 9 Rule 13 C.P.C.
2. Briefly narrated the facts are that the plaintiff Smt. Gyatri filed a suit for rent and eviction against the two defendants Mangal Singh and Ladu Ram – the present petitioner in November 1995 with the averments that one room in her house at Jaipur was let out to the defendant No. 1 Mangal Singh on monthly rent of Rs. 16/-. The eviction was sought on the grounds of default in payment of rent, the tenant has built his own house and sub-let the room to his brother-the defendant No. 2 Ladu Ram and material alterations. Both the defendants appeared through their counsel on 16.1.1996. At their prayer the case was adjourned for filing the written statements. Thereafter none appeared for the defendants on 12.7.1996. The Trial Court proceeded exparte.
3. Having recorded the statement of P.W.1 Rameshwar Prasad, power of attorney holder of the plaintiff and P.W.2 Arvind Kumar, exparte decree of eviction was passed vide judgment dated 22.2.1997.
4. The defendant Ladu Ram filed an application under Order 9 Rule 13 C.P.C. on 26.9.1997 for setting-aside the exparte decree on the grounds mentioned in this application. The plaintiff contested this application by filing her reply. The second defendant Mangal Singh did not appear.
5. An application under Section 5 of the Limitation Act was also moved on behalf of the defendant Ladu Ram.
6. The Trial Court recorded the statements of Ladu Ram, A.W. 2 Smt. Kamla and the statements of Rameshwar Prasad and P.K. Tiwari were recorded on behalf of the plaintiff.
7. Learned Trial Court vide order dated 29.4.2000, dismissed both the applications under Section 5 of the limitation Act and under Order 9 Rule 13 C.P.C.
8. First appeal preferred by defendant Ladu Ram was also dismissed by learned Additional District Judge No. 5, Jaipur City, Jaipur, vide impugned order dated 10.1.2003.
9. I have heard learned counsel for the parties. According to the Order 9 Rule 13 C.P.C. if the defendant satisfies the Court that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting-aside the exparte decree upon such terms as to costs etc.
10. Section 5 of the Limitation Act 1963 provides that any appeal or any application, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
11. As per Art. 123 of the Limitation Act an application to set-aside a decree passed ex parte may be filed within thirty days from the date of decree or where the summons or notice was not duly served, when the applicant had knowledge of the decree.
12. In the instant case, it is not in dispute that both the defendants are brothers and they appeared through their separate counsel in the Court on 16.1.1996. The case was adjourned to 3.2.1996 for submission of written statement. The case was again adjourned to 12.7.1996 for filing the written statement but on 12.7.1996 none of the defendants appeared, hence the Court ordered to proceed exparte. Thereafter evidence was recorded and decree was passed on 22.2.1997.
13. The application by one defendant Shri Ladu Ram for setting aside exparte decree was filed on 26.9.1997 i.e. after a delay of more than seven months. Now the question is as to whether the defendant Ladu Ram has explained this delay upto the satisfaction of the Court ? Learned counsel for the petitioner-defendant contended that he engaged Shri K.L. Dangi as his counsel who assured him to take care of the case but he never informed the defendant about any date fixed by the Trial Court; that the defendant met with an accident on 9.5.1996, remained admitted in S.M.S. hospital and was discharged on 16.5.1996 and thereafter he was on bed-rest for about a period of six months under medical advice and then was transferred to other places, hence, the written statement could not be filed not on account of any negligence on the part of defendant Ladu Ram but on account of the negligence of his counsel and for that the defendant should not be punished and delay should have been condoned. Reliance is placed upon Shyam Lal Dhar v. M/s. Ply Board Industries (1), wherein it was held that it is difficult to lay down any inflexible rule on the question whether a litigant can be held responsible for the negligence of the counsel. Each case must be decided on its own facts but generally speaking a litigant would not be responsible for the negligence of his counsel unless there has been any remissness on the part of the litigant himself. In Radhey Shyam v. Mst. Lalli and Ors. (2), it was held that it can not be said that if an exparte decree was passed then sufficient cause must be shown in respect of the date when the exparte proceedings was first taken.
14. Per contra, it was argued that both the courts below having considered the entire evidence arrived at concurrent finding of the fact that the defendant Ladu Ram has failed to explain the delay of seven months and such finding of fact cannot be disturbed in revision on account of reappreciation of evidence. He placed reliance upon Ram bass v. Davinder (3), wherein it was held that High Court cannot reappreciate the evidence while exercising revisional jurisdiction. One judgment delivered by me, Jwala Pratap Singh v. R.D. Mathur (4), was also relied upon, wherein it was observed that no case of non-reading, wrong reading or misreading of any evidence is made out and even if a different view on the basis of the entire evidence is possible, concurrent findings of fact can not be disturbed in second appeal.
15. In view of the above submissions and the judgments, I have gone through the orders of the courts below. Both the courts below have considered the entire material evidence available on the record and arrived at this conclusion that the defendant Ladu Ram failed to explain the delay of more than seven months and any sufficient cause for his non-appearance in the Trial Court. Learned counsel for the defendant petitioner could not make out a case of non-reading or misreading of the evidence available on the record. The defendant Ladu Ram himself admitted in his statement that his son Sunil Kumar was in touch with his counsel and according to his own statement he joined his duties on 2.2.97 at Banswara after accident. It is also significant to say here that the papers relating to his accident, hospitalization and his posting at various places were placed in the first appeal instead of in the Trial Court. I find no ground to interfere with the concurrent decision of the courts below. It is not a case of simple negligence on the part of the counsel of the defendant petitioner, rather it is a case of gross negligence and total inaction on the part of the petitioner defendant Ladu Ram himself.
16. Thus, in view of the entire discussion made hereinabove, this revision is hereby dismissed and the stay order granted by this court stands vacated.