JUDGMENT Tarun Agarwala, J.
1. The plaintiff respondent Nos. 1 and 2 instituted a Suit No. 340 of 1996 against the petitioner and respondent No. 3 for a declaration that the plaintiffs be declared the owner of the house in question alongwith defendant-respondent No. 3. The defendant No. 1 is the present petitioner and is the Nagar Nigam of Allahabad. The record indicates that the summons were duly served upon the petitioner on 24.6.1996 and since the petitioner did not appear, the trial court, by an order dated 12.12.1996. ordered the suit to proceed ex parte under Order IX, Rule 13 (1) (a) of the C.P.C.
2. It Is alleged by the petitioner that Sri Jata Shanker Pandey, the advocate of the petitioner before the District Court appeared before the trial court in relation to some other matters of the Nagar Nigam. The Court asked the advocate as to why he was not appearing in the present case. It is further alleged that the advocate stated orally to the Court that he had no instructions in the matter. It is alleged that the Court directed the said advocate to seek necessary instructions and. on this basis, Sri Jata Shanker Pandey, advocate moved an application dated 3.2.1999 seeking time to file the written statement. It is also alleged that a formal vakalatnama was filed subsequently and further time to file the written statement was again sought for on 21.4.1999. On 21.4.1999, the petitioner also filed an application alongwith an affidavit sworn by Sri Krishna Kant Patel, an employee of the Nagar Nigam for the recall of the order dated 12.12.1996. The record discloses that on account of the non-appearance of the petitioner, the recall application was dismissed in default on 5.7.1999 and eventually, the suit was decreed ex parte against the petitioner-defendant.
3. During the pendency of the execution Case No. 4 of 2000, a restoration application dated 31.5.2002 was filed by the petitioner under Order IX, Rule 13 supported by an affidavit of Krishna Kant Patel, an employee of the Nagar Nigam. It was alleged that Sri Jata Shanker Pandey. advocate was doing pairvi of the case on behalf of the Nagar Nigam and due to his engagement in other courts, he could not appear and the suit proceeded ex parte and was ultimately decreed. It was also alleged that Krishna Kant Patel, the pairokar, was attached to another advocate, for pairvi in other cases and therefore, he was unaware of the proceedings in the present case and only came to know about these proceedings and the ex parte decree when he appeared before the executing court on 4.5.2002 in regard to some other matter. The restoration application was opposed by the plaintiffs. The trial court after considering the objections allowed the restoration application by its order dated 3.11.2003 holding that sufficient cause was shown for the recall of the ex parte decree. The plaintiffs, being aggrieved by the aforesaid order, filed a revision which was allowed by a Judgment dated 31.7.2005 and the restoration application under Order IX, Rule 13 of the C.P.C. was dismissed. The revisional court came to the conclusion that the petitioner had full knowledge of the proceedings and deliberately avoided to participate in the said proceedings, and on this basis, rejected the application of the petitioner for the recall of the ex parte decree. Aggrieved, the petitioner has now filed the present writ petition.
4. Heard Sri Ajit Kumar Singh, the learned Counsel for the petitioner and Sri M. A. Qadir, the learned Counsel for the plaintiff-respondents.
5. The sole ground for recalling the ex parte decree is that the petitioner's advocate was doing pairvi in the case and he failed to appear on account of his engagement in other cases in other courts. It was also averred that the pairokar was attached to another advocate for other cases of the Nigam and therefore, he was also unaware of the proceedings of the case.
6. Where a defendant employs a counsel for the purpose of his appearance and he neglects or fails to appear in the case, his neglect or failure would constitute sufficient cause for the non-appearance of the defendant within the meaning of Order IX, Rule 13 of the C.P.C. provided that the defendant had done all that was required on him to ensure that the counsel would represent him on all the necessary hearings. It also follows that where the delay in filing the application for setting aside the ex parte decree had been passed against him, such failure would also be a sufficient cause for condonation of the delay under Section 5 of the Limitation Act. A litigant cannot be held responsible for the negligence of his counsel. In the present case, the fact that the counsel did not appear on account of his engagement in another case in another court has not been denied by the plaintiff. What has been urged is, that the employee of the petitioner had filed an affidavit for recalling the ex parte order dated 12.12.1996 and therefore, the petitioner was aware of the proceedings and that the petitioner ought to have enquired from their counsel with regard to the progress of the case. It was also urged that the mere fact that the pairokar was attached to another advocate to look after other cases of the Nagar Nigam did not absolve the petitioner from not doing pairvi in pursuing the present case and therefore sufficient ground had not been made out for the recall of the ex parte order.
7. No doubt, the petitioner had engaged a counsel to look after the case. He did not appear, therefore, on account of the negligence of their counsel, sufficient cause has been made out for the recall of the ex parte order. However, the petitioner's callousness in the present matter in pursuing the remedy cannot be ignored. The petitioner had directed an employee also to look after the case. The mere fact that the employee was attached to another counsel subsequently would not absolve the liability of the petitioner in not pursuing the matter through its advocate or through another employee. This, by itself was a sufficient ground for rejecting the application of the petitioner. However, the primary function of a Court is to adjudicate the dispute between the parties and to advance substantial justice. The petitioner is a public body. Its officers are sometimes apathetic to the situation in pursuing the matter and, at times, the employees connive with the plaintiffs for vested and extraneous reasons. This brings the Justice delivery system into disrepute. Consequently, in the peculiar circumstances of the case and to provide a legal remedy for the general welfare of the public at large, the Court, in exercise of its inherent powers cannot allow a party to enjoy an ex parte decree without adjudication of the suit on merit and which has the effect of dissipating a public property. The present suit was filed for a declaration that the plaintiff should be declared to be the owner of the property. The contention of the plaintiff is that the petitioners are ascertaining their rights as the owner of the property in question. Therefore, in the larger interest and to provide a legal remedy to repair the damages caused by reason of legal injury, this Court considers it fit to set aside the order of the revisional court.
8. Accordingly, the impugned order cannot be sustained and is quashed. The writ petition is allowed on the payment of cost of Rs. 5,000. This amount shall be deposited by the petitioner before the trial court within six weeks from today. The amount so deposited shall be withdrawn by the plaintiff. The defendants are further directed to initiate an inquiry and recover this amount of Rs. 5,000 from the erring official. Since the suit is of the year 1996, the trial court is directed to decide the suit within a period of one year from the date of the production of a certified copy of this order. The parties will not seek any undue adjournment.