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1997 DIGILAW 10 (RAJ)

Bhani v. Mahaveer Prasad

1997-01-03

SHIV KUMAR SHARMA

body1997
Honble SHARMA, J. – The crucial legal question which arises for consideration in this revision is as to what is the object of the procedure laid down by O.9 of the CPC? To do substantial justice or to entrap the defendant in the technicalities of the procedure? (2). The question has emerged in the following circumstances :– (i) Smt. Bhani an illiterate widow aged 65 years, was a defendant in a suit for permanent injunction instituted by plaintiff Mahavir Prasad in the trial Court. According to facts projected in the revision, summons was not served upon her but her counsel Shri Islammuddin Gauri advised here to put appearance and filed memo of appearance on her behalf. Neither her signatures were obtained on vakalatnama nor any vakalatnama was filed on behalf of her by her counsel. The suit was not properly defended and her counsel without informing her pleaded no instructions. Thereupon she was proceeded exparte on 21.1.1991. On 2.11.1995, knowing for the first time about exparte proceedings she moved an application u/O. 9 R. 7 CPC before the trial Court for setting aside the exparte order and requested the Court to provide her an opportunity to file written statement and to defend the suit. (ii) The trial Court vide its order dated 29.1.96, dismissed the application. The said order has been assailed in this revision. (3). Before assessing the merits of the petition, it is necessary to examine the statutory provisions. Order 9 R. 7 CPC provides that ``where the Court has adjourned the hearing of the suit exparte and assigned good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. (4). All that this rule means is that unless the exparte order is set aside the defendant can not be relegated to the position he would have occupied if he has appeared. If he does appear on the date to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings from that stage simply because he did not appear on the first or some other hearing and did not show good cause for the non-appearance. If he does appear on the date to which the hearing of the suit is adjourned, he cannot be stopped from participating in the proceedings from that stage simply because he did not appear on the first or some other hearing and did not show good cause for the non-appearance. The only effect of setting aside an exparte order u/O. 9 R. 7 CPC is to set the clock back by permitting such defendant to avail the opportunities he had, in the matter of contesting the suit from the stage before he was set exparte. (5). Mr. R.K. Agrawal, learned counsel for the petitioner vigorously canvassed that the trial Court made a wholly erroneous approach while considering the application of an old illiterate widow. She could not be punished for the inaction and negligence on the part of her counsel who sought adjournments on the basis of memo of appearance and ultimately pleaded no instructions. (6). On the other hand, Mr. B.L. Mandhana, learned counsel for the non-peti- tioner supported the impugned order. He placed reliance on Smt. Kanchan Kumari Lunia vs. R.H.B.(1), in which this Court has held that the court can exercise the jurisdiction of permitting the defendant to be heard in answer to the suit only if good cause is assigned by the defendant for his previous non- appearance. Existence of good cause is a condition precedent for the exercise of jurisdiction by a Court u/s. O.9 R. 7 CPC. (7). I have given my anxious and thoughtful consideration to the rival contentions and perused the impugned order as well as certified copies of the order sheets of the trial Court filed by Mr. B.L. Mandhana, learned counsel. (8). A perusal of the order sheet dated 21.11.1989 of the proceedings of the trial Court reveals that counsel Islamuddin had only filed memo of appearance on behalf of the petitioner Smt. Bhani and sought time to file vakalatnama. Thereafter continuously the counsel sought time to file vakalatnama and ultimately did not appear on 21.1.1991 and the petitioner Smt. Bhani was proceeded exparte and the suit was posted for recording the evidence of the plaintiff. It is pertinent to note that plaintiff non- petitioner instituted the suit on 7.11.1988 and counsel Islamuddin filed the memo of appearance on behalf of Smt. Bhani on the next day i.e. on 8.11.1988. It is pertinent to note that plaintiff non- petitioner instituted the suit on 7.11.1988 and counsel Islamuddin filed the memo of appearance on behalf of Smt. Bhani on the next day i.e. on 8.11.1988. The summons of the suit was never served upon Smt. Bhani, the petitioner. (9). Learned counsel Mr. Islammuddin had acted in gross violation of the provisions contained in O.3 R4 CPC, which provides that no pleader shall act for any person in any Court unless he has been appointed for the purpose by such person by a document in writting signed by such person or by his recognised agent or by some other person duly authorised by or under a power of attorney to make such appointment. Every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or pleader dies, or until all proceedings in the suits are ended so far as regards the clients. (10). This rule provides in what manner a pleader should be appointed and till what time the appointment is to be in force. It does not give an absolute right to any practitioner to appear in Court in any manner he chooses. (11). In the instant case, it was incumbent upon the trial Court to consider (a) whether summons was served upon the defendant petitioner Smt. Bhani (b) how the counsel Mr. Islamuddin came to know about the filing of the suit by the plaintiff on the very next day i.e. on 8.11.1988 and why did he only file his memo of appearance, and not the vakalatnama duly signed by Smt. Bhani? (12). It has shocked my judicial consciance that the learned trial Court allowed Mr. Islamuddin, the learned counsel to flout the provisions of O. 3 R. 4 CPC for a long time. On 21.1.1991 when Mr. Islammuddin did not appear, it was the duty of the trial Court to issue fresh summons to the defendant petitioner Smt. Bhani. (13). I am of the considered view that Smt. Bhani, the petitioner had assigned good cause to her non-appearance in the application. Appearance of counsel Islamuddin with out written authority can not be treated appearance in the eye of law. (13). I am of the considered view that Smt. Bhani, the petitioner had assigned good cause to her non-appearance in the application. Appearance of counsel Islamuddin with out written authority can not be treated appearance in the eye of law. Provisions contained in O.3 R. 4 CPC ought to have been complied in letter and spirit. In not doing so the trial Court has acted illegally in exercise of jurisdiction vested in it and if the impugned order is allowed to stand it would occasion failure of justice. (14). Consequently revision succeeds and is hereby allowed. The impugned order of the trial Court is set aside. While allowing the application of the petitioner filed before the trial Court u/ O. 9 R. 7 CPC, I set the clock back by permitting the petitioner to avail the opportunities she had, in the matter of contesting the suit from the stage before she was set exparte. No costs. (15). Before parting with I may like to observe that the object of the procedure laid down by O.9 of the CPC, is to do substantial justice and not to entrap the defendant in the technicalities of the procedure.