Archana Kumar v. Purnendu — 1994 DIGILAW 276 (MP)

JUDGMENT 1. This appeal is filed against the order refusing to set-aside the ex-parte judgment and decree passed on 1.11.85 in Civil Suit No. 17-A/78. The defendant-appellant No. 1 Smt. Archana Kumar and the plaintiff-respondent Purnendu Prakash Mukherjee are sister and brother. The appellant No.2 Surendra Nath Kumar is husband of appellant No. 1. The suit was filed by the plaintiff against his mother Smt. Suchifra Mukherjee, who died during the pendency of the suit on 15.9.84. 2. Narendra Nath Mukherjee was the original holder of the suit property, who died on 15.11.44 intestate leaving behind his widow, son and a daughter. The suit property is known as bungalow nos. 134.to 135-1/A, Napier Town, Jabalpur. The deceased are Hindus governed by Dayabhaga School of Hindu Law. In 1966, Suchitra Mukherjee got her name mutated in Municipal records. 3. The plaintiff claimed the suit property alleging that he alone was entitled to succeed the suit property. However, the case of the defendants is that on the death of Narendra Nath Mukherjee the whole property was divided by metes and bound according to the wishes of the deceased mutually between respondent and his mother and that the suit house was exclusively given to the mother and was continuing in possession of the same from the year 1945 till her death. It is also alleged that respondent left Jabalpur for Calcutta and did not lay any claim to the property till the year 1954. 4. On these pleadings, the suit was contested. The suit was instituted on 14.11.77. It was fixed for various proceedings and some relevant dates are given. Despite several hearings, ultimately the suit was fixed for recording the evidence on 13.4.82. At the request of the defendants i.e. the present appellants the suit was adjourned to 24.3.83 and thereafter on 21.6.83. The evidence, however, started on 23.6.83. The same could not be completed and was adjourned to 19.8.83, on payment of costs by defendants. The same was adjourned to 5.4.84 again and thereafter adjourned to 21.4.84 at the request of the defendants. On 21.2.1985 the case was fixed for cross-examination of the plaintiff. The same was adjourned for cross-examination by defendant No.1 and the date was fixed for 3.8.85, in the earlier part of the day the suit was adjourned and was taken up at 2.30 p.m.. On 21.2.1985 the case was fixed for cross-examination of the plaintiff. The same was adjourned for cross-examination by defendant No.1 and the date was fixed for 3.8.85, in the earlier part of the day the suit was adjourned and was taken up at 2.30 p.m.. Shri Pethia, learned counsel for the defendants, appeared and the same was adjourned on payment of costs for recording evidence on 7.10.85. The dates material for deciding this matter are 3.8.85 and 7.10.85. It is alleged that Shri Pethia instead of recording the correct date i.e. 7.10.85 recorded 20.11.85 in his diary and the same was communicated to the defendants. 5. On 7.10.85, none appeared for the defendants. After 7.10.85, the case was adjourned to 14.10.85, 15.10.85 and ultimately ex-parte decree was passed on 1.11.85. In between on 30.10.85, an application under Order 9 Rule 7 C.P.C. was filed which was dismissed as the hearing was closed after arguments and the suit was fixed for judgment on 1.11.85. 6. After the judgment and decree was passed, another application was filed on 1.11.85 under Order 9 Rule 13 C.P.C. for setting-aside ex-parte judgment and decree passed by the Court below. The same was dismissed by the Court after recording evidence vide order dated 15.1.86. Against the said order, this miscellaneous appeal has been filed. 7. The main submission made by the learned counsel for the appellants is that Shri Pethi bona fide wrongly recorded the date of hearing and communicated the same to the defendants who had inquired from him on telephone whether the suit is listed for hearing on 20.11.85. Shri Pethia, however, informed that the case would not be taken on the same day as there were Sessions cases fixed before the Court. 8. However, Shri Pethia on inspection of the file found that the suit was already proceeded ex-parte on 7.10.85. He made an application alongwith an affidavit on 30.10.85 to set-aside the ex-parte order. The application was dismissed since the suit was closed for judgment. 9. Shri Dabir, learned counsel for the appellants, vehemently argued that for the mistake of the counsel the party should not be punished. He relied on the judgment of Supreme Court reported in The State of West Bengal v. The Administrator, Howrah Municipality and others [ AIR 1972 SC 749 ]. In the said case, the wrong advice of the counsel was given. He relied on the judgment of Supreme Court reported in The State of West Bengal v. The Administrator, Howrah Municipality and others [ AIR 1972 SC 749 ]. In the said case, the wrong advice of the counsel was given. Steps were not taken according to law. As such, the matter had become time barred, and on an application being made under section 5 of the Limitation Act the said plea was taken. The Supreme Court considered what is sufficient cause for condoning the delay in filing an appeal. In the circumstances of the said case, the Supreme Court held that the filing of writ petition under Article 227 of the Constitution against the award was on a wrong advice given by the counsel and condoned the delay on the ground that mistaken advice given by a legal practitioner may in the circumstances of the particular case give rise to sufficient cause within the section though there is certainly no general doctrine which saves parties from the results of wrong advice. 10. In the instant case, it is only to be found whether Shri Pethia bona fide recorded a wrong date in his diary and communicated the same on the basis of the party acted. The said communication, however, was not produced in the Court and Shri Kumar who was present in the Court at the time of recording of evidence, on the said application did not enter witness box to support the case of a wrong communication. 11. Shri Ravish Agrawal, learned counsel for the respondents, on the other hand submitted that the suit was pending right from the year 1976 and the suit was being adjourned at the request of the defendants on several occasions. For the first time, the suit was fixed for recording the evidence on 13.4.82. Despite several adjournments on the request of the defendants, the plaintiff's cross-examination could not be completed. The suit was adjourned for several times on the request of the defendants on payment of costs. For the first time, the suit was fixed for recording the evidence on 13.4.82. Despite several adjournments on the request of the defendants, the plaintiff's cross-examination could not be completed. The suit was adjourned for several times on the request of the defendants on payment of costs. Shri Ravish Agrawal read over the application and the affidavit filed by the counsel for the defendants in support of setting aside the ex-parte judgment and decree, the particular emphasis was laid on paras 2 and 4 wherein it has been said that he communicated the information to the defendants, however, the said communication is not placed on record nor any of the defendants have entered witness box to say that they received any information. It is also said that Shri Pethia had signed the order sheet after reading the same and as such it should be understood that he should have recorded the date 6iven by the Court i.e. 7.10.85. Shri Ravish Agrawal submitted the absence of evidence as regards wrong communication, the defendants appellants have failed to prove any sufficient cause or a wrong communication given by the counsel which entitled them to get the order set-aside. He relied on the same judgment i.e. The State of West Bengal v. The Administrator, Howrah Municipality and others (supra) and very strongly relied on a judgment of this Court in Indira Kumari Sharma v. Hari Shankar [ 1985 MPWN 542 ] wherein this Court said as under :- "There is also nothing on record to indicate how and why Shri Tiwari, her lawyer noted the wrong date. It was the duty of the lawyer to appear and participate in the proceedings and had he done so he would have discovered on the date itself that the case had been proceeded ex-parte and would have made an application to set-aside immediately." 12. Salil Datta v. T.M. & M.C. Private Ltd. [ 1993 (2) SCC 185 ], in a case which is very much similar to the present case. The question was whether the defendants were innocent party and unaware of the Court proceedings? In the present case, the appellant No.2 is an Ex. Judge of the High Court of Delhi. He is supposed to know the proceedings in a civil suit and the consequences flowing from the non-appearance. The question was whether the defendants were innocent party and unaware of the Court proceedings? In the present case, the appellant No.2 is an Ex. Judge of the High Court of Delhi. He is supposed to know the proceedings in a civil suit and the consequences flowing from the non-appearance. The suit was fixed for evidence several times and even the plaintiff's evidence could not be completed for long 9 years and this appeal is pending before this Court for another 8 years. Should the defendants be granted indulgence to prolong the suit? 13. The Crux of the matter is whether the evidence of Shri Pethia is such, on the basis of which the ex-parte judgment and decree passed by the Court below, was liable to be set-aside and whether the defendants were justified in remaining absent on 7.10.85, if not the consequences? 14. Paras 7 & 8 of the judgment passed in Salil Dattav. T.M. &M.C. Private Ltd. [ 1993 (2) SCC 185 ] are reproduced below:- "The question is whether the principle of the said decision comes to the rescue of the defendant respondent herein. Firstly, in the case before us it was not an appeal preferred by an outstation litigant but a suit which was posted for final bearing seven years after the institution of the suit. The defendant is a private limited company having its registered office at Calcutta itself. The persons in charge of the defendant-company are not rustic villagers nor they are innocent illiterates unaware of Court procedures. Prior to the suit coming up for final hearing on June 9, 1985 the defendant had filed two applications whereupon the Court ordered that they will be considered at the time of the final hearing of the suit. The plaintiff's case no doubt is that the said applications were part of delaying tactics being adopted by the defendant-tenants with a view to protract the suit. Be that as it may, the defendant-tenants thereafter refused to appear before the Court. According to the defendants, their advocate advised them that until the interlocutory applications filed by them are disposed of, the defendant need not appear before the Court which means that the defendants need not appear at the final hearing of the suit. It may be remembered that the Court proposed to consider the said interlocutory applications at the final hearing of the suit. It may be remembered that the Court proposed to consider the said interlocutory applications at the final hearing of the suit. It is difficult to believe that the defendants simplicity believed their advocate's advice. Being educated business-men they would have known that non-participation at the final hearing of the suit would necessarily result in an adverse decision. Indeed we are not prepared to believe that such an advice was in fact tendered by the advocate. No advocate worth his salt would give such advice to his client. Secondly, the several contradictions in his deposition which are pointed out by the Division Bench in the impugned order go to show that the whole story is a later fabrication." "The advocate is the agent of the party. His acts and statements, made within the limits of authority given to him, are the acts and statement of the principal i.e. the party who engaged him. It is true that in certain situations, the Court may, in the interest of justice, set aside a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it finds that the client was an innocent litigant but there is no such absolute rule that a party can disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As we have mentioned hereinabove, this was on-going suit posted for final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a villager residing away from the city, where the Court is located. The defendant is also not a rustic ignorant villager but private limited company with its head-office at Calcutta itself and managed by educated businessmen who know where their interest lies. It is evidence that when their applications were not disposed of before taking up the suit for final hearing they felt piqued and refused to appear before the Court. Having adopted such a stand towards the Court, the defendant has no right to ask it indulgence. It is evidence that when their applications were not disposed of before taking up the suit for final hearing they felt piqued and refused to appear before the Court. Having adopted such a stand towards the Court, the defendant has no right to ask it indulgence. Putting the entire blame upon the advocate and trying to make it out as if they were totally unaware of the nature or significance of the proceedings is a theory which cannot be accepted and ought not to have been accepted." 15. The trial Judge considered the whole matter and found that there was no sufficient cause for non-appearance on the date fixed. The evidence of Shri Pethia was not accepted by the trial Court. In absence of the communication as argued by the learned counsel for the respondent, tilts the balance in the favour of the plaintiff that the party which is highly placed and should have known the procedure before the Court should be expected to know the consequences of non-appearance is not entitled to any indulgence, more so when, the suit had been pending for such a long time and number of adjournments have been granted for the several years at the instance of the defendants. 16. Accordingly, this appeal is dismissed with costs, of Rs. 200/-.