Relevant Extract from Delhi High Court Judgment
3. This petition under Article 227 of the Constitution of India impugns the order [dated 19th July, 2017 in MCA No. 01/2016 of the Court of Additional District Judge-03 (ADJ), North-West District, Rohini Courts, Delhi] of dismissal of the appeal preferred by the petitioners against the order (dated 19th November, 2015 in Civil Suit No. 476/2013 of the Court of Senior Civil Judge (SCJ), North-West, Rohini Courts, Delhi) of dismissal of the application of the petitioners / plaintiffs under Order IX Rule 9 of the CPC for restoration of the suit dismissed in default on 2nd June, 2015.
4. The learned SCJ dismissed the application u/O IX Rule 9 CPC reasoning that the suit, on an earlier occasion also, on 2nd September, 2014 was dismissed in default though had been restored on 10th February, 2015 on the application of the petitioners / plaintiffs and the negligence of the petitioners / plaintiffs a second time in not pursuing the suit was unpardonable. It was further observed that the application under Order IX Rule 9 of the CPC was absolutely quiet as to the name even of the advocate who had wrongly noted the date as 2nd September, 2015 instead of 2nd June, 2015 and the application was also without even the affidavit of the petitioners / plaintiffs.
5. The learned ADJ has dismissed the appeal vide the impugned order observing that though the petitioners / plaintiffs along with the appeal had filed photocopies of the case diary and index of the file of the case maintained by the advocate for the petitioner / plaintiff but a perusal thereof showed the date of 2nd June, 2015 to have been interpolated to read as 2nd September, 2015 and no explanation of such interpolation / overwriting was forthcoming.
6. The counsel for the petitioners / plaintiff has commenced his argument by stating that “the petitioners / plaintiffs have been let down by their earlier advocate”.
7. Such grounds which prevailed with the Privy Council and other superior Courts established in British India, which did not give weight age to and had no faith in the ability of the Indian lawyers, specially in moffusils, to diligently protect the interest of their illiterate clients, ought not to continue to prevail in today‟s date and time in independent India.
8. Perhaps, it is because of the said grounds having been allowed by the Courts to prevail, that perfection and excellence is lacking in the legal profession and mediocrity has set in.
9. It further appears that if the Courts and the legal process were to demand excellence and perfection, certainly the legal profession would reciprocate and mediocrity will give way to meritocracy. It is time to send a strong signal that mediocrity will not be tolerated in Courts. This will improve the legal system and help it achieve the targets. It is often said, bar is the mother of bench also.
10. I have in several orders dealing with petitions under Article 227 of the Constitution of India in this Roster been observing that the practice of a new counsel engaged, blaming earlier counsel, has become rampant and without the new counsel even checking up with the earlier counsel, whether the default was of the earlier counsel or of the litigant‟s own.
11. In the present case also, the petitioners / plaintiffs though blame their earlier counsel, have not even complained to him, least take any action against him and the counsel for the petitioners / plaintiffs also has not taken the trouble of ringing up the earlier counsel to find out as to what had transpired.
12. The counsel for the petitioners/plaintiffs to find out from the earlier counsel and if possible to also request him to appear before the Court on the next date of hearing.
13. List on 21st September, 2017.
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