R.L. Anand, J.

1. This is a civil revision and has been directed against the order dated 11.9.1999, passed by the Distt. Judge, Hoshiarpur, who dismissed the application of the present petitioner-appellant under section 5 of the Limitation Act and dismissed the appeal.

2. Some facts can be noticed in the following manner:-

(i) Kirpal Singh, respondent before me, filed a money suit for a sum of Rs. 2,44,350/- against the petitioner. The suit was contested by the petitioner. The suit was contested by the petitioner, who even engaged a counsel and filed the written statement. Rejoinder was also filed by Kirpal Singh and on the pleading of the parties, which need not be incorporated in the present order, issues were framed.

(ii) The evidence of the plaintiff-respondent started. The plaintiff examined some witnesses and closed the evidence. The case was adjourned for the evidence of the defendant-petitioner. Sufficient opportunity was given to the defendant to produce his evidence. Before I proceed further with this order, it may stated that as per the case of the plaintiff, the defendant was a resident of Canada. The case in the trial Court came up for hearing on 27.8.1997 and it was adjourned to 30.9.1997 with the orders that if the evidence of the defendant is not produced on that day, it shall be deemed to have been closed by order. Unfortunately for the defendant, who engaged a counsel, he was not properly informed about the day to day proceedings. On 30.9.1997 itself, the counsel for the defendant made a statement before the trial Court and pleaded no instructions on behalf of the defendant as a result of which, the defendant was proceeded exparte and an exparte decree was passed in favour of the plaintiff by the Additional Civil Judge (Sr. Division), Garhshankar. When the defendant-petitioner came to know about the passing of the exparte decree, he filed an appeal before the first appellate Court along with an application under section 5 of the Limitation Act, by stating that he came to know about the passing of the exparte decree on 11.9.1998. This application under section 5 of the Limitation Act was contested by the plaintiff-respondent who filed the reply and denied the allegations. Issues were struck and vide the impugned order dated 11.9.1999, the application under section 5 of the Limitation Act was declined. Resultantly, the appeal of the defendant was also dismissed as time barred and, in this manner, the present revision.

3. I have heard Mr. Parveen Kumar, counsel for the petitioner and Mr. Ranjit Saini, counsel for the respondent, and with their assistance have gone through the record of this case.

4. The only material point for determination before this Court is as to what is the duty of the Court when a lawyer pleads no instructions on behalf of his client. The learned counsel for the respondent has invited my attention to a Division Bench judgment of this Court in Suresh Kumar v. Smt. Daryai and Ors. and stated that when a lawyer pleads no instructions, it is not obligatory on the part of the Court to serve a notice to the client and such a client must suffer irrespective of the fact that this lawyer has not given the appearance on his behalf. Mr. Saini also submitted that the conduct of the lawyer and the defendant indicates that sufficient opportunity was given by the trial Court to the defendant to lead the evidence in rebuttal but inspite of seven opportunities given to the defendant, he has not cared to come in the witness box nor he has examined any witness and, in these circumstances, the ex-parte decree has been rightly passed in favour of the plaintiff and against the defendant-petitioner.

5. On the contrary, counsel for the petitioner submits that for the fault of the lawyer, a litigant should not suffer. The petitioner never received any intimation from his lawyer about the adjournments and also about the last hearing dated 30.9.1997. Moreover, when the lawyer pleads no instructions, it was obligatory on the part of the Court to issue a notice to the clients so that he may be able to defend his Us. Counsel for the petitioner relied upon Paramjit Singh v. Faquir Singh, , Navneet Priya Shamjit Maharaj Society v. Chuni Lal Sharma etc. 1994(4) R.C.R.) 573 and the judgment of the Honble Supreme Court in Tahil Ram Issardas Sadarangani v. Ram Chand Issardas Sada Rangani, : A.I.R. 1993 S.C. 1182.

6. I have considered the rival contentions of the parties and am of the opinion that , the trial Court as well as the first appellate Court had committed a patent illegality when the notice to the defendant-petitioner was not given. It is settled principle of law that for the lapse of the lawyer, a client is not supposed to suffer. In the present case, neither any mala fide nor any negligence can be imputed to the petitioner when he did not bring any evidence before the trial Court. The procedure is meant for advancement of justice and not to scuttle the justice. It is the admitted case of the parties that the petitioner was a resident of Canada and this address was shown even in the head note of the! plaint. If a litigant in his right: earnest had engaged a counsel, his expectation always would be that his lawyer would give the best and would represent him on each and every date of hearing. If the lawyer of the petitioner was at loss when he did not inform the petitioner about the proceedings of the case, such a litigant should not suffer. The judgment which has been relied upon by the counsel for the respondent can be safely distinguished. The judgment pertains to the Workman Compensation Act. Even in this judgment, the ; Honble D.B. never held that in no circumstance, the notice should go to the litigant when the lawyer does not plead any instructions.

7. In this view of the matter, the present revision is allowed, the ex parte judgment and decree dated 3.10.1997 and the order dated 11.9.1999 are set aside subject to payment of Rs. 2,000/- as costs, which shall be conditional and directions are given to the Court of the Additional Civil Judge (Sr. Division), Garhshankar (trial Court), to re-admit the suit to its original number and give opportunity to the defendant, who shall conclude his evidence within three months from the date of appearance before the trial Court. If within, three months, the defendant does not conclude the evidence, it will always be open to the trial Judge to close the evidence of the defendant by order.

8. The costs shall be conditional and if the same are not tendered on the next date of hearing before the trial Court, the revision shall be deemed to have been dismissed.

The parties, through their counsel are directed to appear before the trial Court on 21.2.2000.