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Rajasthan High Court · body

2001 DIGILAW 1327 (RAJ)

Gulabo v. Nagar Palika, Phalodi

2001-08-24

H.R.PANWAR

body2001
JUDGMENT : 1. This appeal is directed against the order dated 9.12.1993 passed by learned Additional District Judge, Phalodi, whereby the trial court dismissed the application filed by the appellant under Order 9 Rule 4 read with section 151 Civil Procedure Code. 2. I have heard the learned counsel for the parties, perused the record. 3. A suit for permanent injunction was filed by the appellant against the respondents before the learned District Judge, Jodhpur which was transferred for trial to learned Additional District Judge No. 3, Jodhpur. On creation of the court of Additional District Judge at Phalodi, learned Additional District Judge, Phalodi had jurisdiction of the matter. 4. The respondents filed the written statements on 8.5.1986 and the case was posted for settlement of issues on 12.8.1986. At the request of respondents, case was adjourned to 13.8.1986 for settlement of issues. On 13.8.1986, the counsel representing the appellant pleaded no instructions without any prior intimation to the appellant. Appellant was not present before the court. Instead of framing issues, the trial Court dismissed the suit for want of prosecution on 13.8.1986. 5. Learned counsel for the appellant submits that having engaged Shri Dharmichand Panwar as counsel, the appellant was complacent that his interest would be looked after by his counsel. Counsel fee agreed was also paid by the appellant to his Counsel. It is further contended that the counsel engaged by the appellant before the trial Court neither intimated him his intention to-plead no instructions nor after having pleaded no instructions, informed the appellant and, therefore, there was hardly any occasion for the appellant to remain present before the trial court on the date fixed by the trial court for settlement of issues. He further contended that on 13.8.1986, suit was fixed for settlement of issues. Issues are required to be framed by the court and, therefore, presence of parties cannot be said to be necessary as nothing was to be done by the appellant for the settlement of issues. It was further contended that under Order 9 Rule 8 Civil Procedure Code, the trial court could dismiss the suit, if the appellant does not appear when the suit is called for hearing. Date fixed for framing of the issues by the trial court cannot be said to be a date fixed for hearing of the suit. It was further contended that under Order 9 Rule 8 Civil Procedure Code, the trial court could dismiss the suit, if the appellant does not appear when the suit is called for hearing. Date fixed for framing of the issues by the trial court cannot be said to be a date fixed for hearing of the suit. The expression 'hearing' appearing in Order 17 Rule 2 Civil Procedure Code means the date when the Judge is taking evidence or hearing arguments or otherwise coming to the final adjudication of the suit. Thus, according to the learned counsel for the appellant the date fixed for settlement of issues cannot be said to be the date fixed for hearing of the suit and, therefore, he contended that trial court was in error in dismissing the suit filed by the appellant. It was further contended that the dismissal of the suit in these circumstances was not in accordance with the provisions of Order 9 Rule 8 Civil Procedure Code and, therefore, the learned trial court ought to have restored the suit on the application filed by the appellant by exercising its inherent powers under Section 151 Civil Procedure Code He further contended that application filed by the appellant should have been construed to be an application under section 151 Civil Procedure Code and for which period of limitation is governed by Article 137 of the Limitation Act. Article 137 of the Limitation Act provides three years' period of limitation. He has relied on judgment of this Court in Girish Chandra v. Radhey Shyam and Others, ILR (1970) 20 Raj. 493 in which, this Court had held as under : "An application under Section 151 invoking the inherent powers of the court has generally been held to be governed by Article 181 which provides for a period of limitation of three years. In some cases it was held that such an application is not made under any provision of the Civil Procedure Code and hence it is not governed by Article 181." (Corresponding Section 137 of Limitation Act, 1963). 6. He further submits that the learned trial court was in error in dismissing the application filed by the appellant on the ground of limitation. 6. He further submits that the learned trial court was in error in dismissing the application filed by the appellant on the ground of limitation. According to the learned counsel for the appellant firstly; the application filed by the appellant purported to be under section 151 Civil Procedure Code which was filed within the period of limitation of three years as envisaged under Article 137 of the Limitation Act. Even as an abundant caution, the appellant has filed application for condonation of delay under section 5 of the Limitation Act by which he has sufficiently explained the delay caused in filing the application for restoration. 7. In the instant case, neither the appellant was required to remain present on the date fixed for settlement of issues nor he was directed by the court to remain present. There was no occasion for his counsel to have pleaded no instructions on the date fixed for settlement of issues. At least counsel pleading no instructions was expected to show the Court the reasons for which he was doing so. Sub-section (2) of Rule 4 ORDER 3 Civil Procedure Code very clearly lays down that the appointment to pleader shall be deemed to be in force until determined with the leave of the Court by writing signed by the client for the pleader, as the case may be and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client. 8. The counsel for the appellant before the trial Court who pleaded 'no instructions' did not comply with the requirement of seeking leave of the court to withdraw from the case in writing. The learned trial court also ignored the above unambiguous provisions of law. The purpose of such provision in the Civil Procedure Code is clearly to avoid the possibility of litigation suffering because of sudden pleading of no instructions by his counsel without his knowledge. The learned trial court also ignored the above unambiguous provisions of law. The purpose of such provision in the Civil Procedure Code is clearly to avoid the possibility of litigation suffering because of sudden pleading of no instructions by his counsel without his knowledge. It is clearly a duty of the court to ensure whether such prayer is made in writing and before granting leave to withdraw from the case to ensure that the party on whose behalf the counsel was appearing, has knowledge of such withdrawal from the case.In the instant case, neither counsel appearing for the appellant before the trial court, intimated his intention in doing so before pleading "no instructions" nor the appellant was informed by the court. In Milkiyat Singh and another v. Joginder Singh and others, AIR 1998 SC 258 , the Hon'ble Supreme Court observed as under : "There is no denying the fact that the appellants had engaged a counsel to defend them in the civil suit, The counsel for the appellant pleaded 'no instructions' but the court did not issues any notice to the appellants, who were admittedly not present on the date when their counsel reported no instructions in the court. It is nobody's case that the counsel informed them after he had reported no instructions to the court." 9. Similarly, in Tahil Ram Issardas Sadarangani & ors. v. Ramchand Issardas Sadarangani & Anr. 1993 (Supp.) 3 SCC 256, the Hon'ble Supreme Court has held as under : "It is not disputed in the present case that on 15.3.1974 when Mr. Adhia, Advocate withdrew from the case, the petitioners were not present in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adhia withdrew from the case, the interest of justice required, that a fresh notice for actual date hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not a fault and as such should not be made to suffer." 10. Adhia withdrew from the case, the interest of justice required, that a fresh notice for actual date hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not a fault and as such should not be made to suffer." 10. In Smt. Manju v. Krishan Gopal, 1998 (3) WLC (Raj.) 29 : 1998 DNJ (Raj.) 335, this Court has held as under : "Sub-rule (2) of R. 4 of Order 3 of the Civil Procedure Code very clearly lays down that the appointment of a pleader 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 the pleader dies, or until all proceedings in the suit are ended so far as regards the client. The counsel for the respondent before the trial court who pleaded no instructions did not comply with the requirements of asking for leave of the Court to withdraw from the case in writing and the court also ignored the provision. The purpose because of the provision is clearly to avoid the possibility of a litigant suffering because of a sudden pleading of no instructions by his counsel without his knowledge. It is clearly the duty of the Court to ensure strict compliance with the Rule and require a counsel pleading no instructions to make such prayer in writing and before granting leave to withdraw from the case to ensure that the litigant on whose behalf the counsel was appearing has knowledge of such withdrawal of his counsel from the case. If a counsel wants to plead no instructions before the Court it is the duty of the Court to require him to first give a notice to his client. In any case leave to withdraw from the suit by pleading to instructions should not be granted to a counsel without notice to the client for whom he appears." 11. In Bijli Cotton Mills (Pvt.) Ltd. v. M/s. Chhaganmal Bastimal, AIR 1982 All. In any case leave to withdraw from the suit by pleading to instructions should not be granted to a counsel without notice to the client for whom he appears." 11. In Bijli Cotton Mills (Pvt.) Ltd. v. M/s. Chhaganmal Bastimal, AIR 1982 All. 183 , a Division Bench of the Allahabad High Court held as under : "That the appointment of a pleader 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 the Court. Once an Advocate is engaged as a pleader by his client the authority of the advocate to represent his client continues to remain in force until it is determined with the leave of the Court in writing signed by the client or the pleader. In the absence of a written termination of the relationship of the client and the pleader, the pleader is not absolved of his duty to appear on behalf of his client. Any statement made by him that he had no instructions do not terminate his authority. Once he has accepted the brief, he continues to represent the client and be responsible for the conduct of the case. He is, no doubt, entitled to terminate his status as a pleader of the client but that cannot be done orally. It must be done in writing with the permission of the Court in the manner laid down by Order 3, Rule 4(2) Civil Procedure Code." 12. In the instant case, unfortunately the provision as envisaged in sub-rule (2) of Rule 4 ORDER 3 Civil Procedure Code was not followed. Learned trial court ought not have allowed the counsel to withdraw from the case by reporting 'no instructions' and, should have proceeded with the case by framing the issues. Thus, in view of the settled law, in my considered opinion, learned Additional District Judge was in error in dismissing the suit. 13. The next point for consideration is whether trial court further erred in dismissing the application filed by the appellant for restoration of suit on the ground that it was barred by limitation. Thus, in view of the settled law, in my considered opinion, learned Additional District Judge was in error in dismissing the suit. 13. The next point for consideration is whether trial court further erred in dismissing the application filed by the appellant for restoration of suit on the ground that it was barred by limitation. Though the application for restoration of the suit was titled under Order 9 Rule 8 read with section 151 Civil Procedure Code but from the perusal of the application, it is revealed that the said application was under Section 151 Civil Procedure Code The application under Order 9 Rule 8 Civil Procedure Code would lie where appellant does not appear when the suit was called on for hearing. In the instant case, the date when the suit was dismissed, it was not called on for hearing but it was for the settlement of the issues and, therefore, the application for restoration filed by the appellant was under section 151 Civil Procedure Code for which the period of limitation is governed by Article 137 of the Limitation Act. Article 137 provides three years period of limitation for filing such application. The provision contained in Article 137 of the Limitation Act, 1963 provides a period of limitation of 3 years for application for which no period of limitation is provided elsewhere in the schedule or by section 48 of Civil Procedure Code Thus, it cannot be said that the application was beyond period of limitation. 14. In Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1977 SC 282 , the Hon'ble Supreme Court has held as under:- "The alteration of the division as well as the change of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation act shows that applications contemplated under Article 137 are not applications confined to the Civil Procedure Code. In the 1908 Limitation Act there was no division between applications in specified cases and other application as in the 1963 Limitation Act. The words "any other application" under Article 137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act." 15. The words "any other application" under Article 137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act." 15. Even assuming that the application for restoration of the suit was filed beyond period of limitation, then also it was accompanied by application under section 5 of the Limitation Act for condonation of delay. 16. It is contended by the learned counsel for the appellant that the trial court fell in error in not construing the sufficient cause liberally for condonation of delay. 17. In Rajputana Trading Company Ltd. v. Commissioner of Income Tax, West Bengal, AIR 1969 SC 575 , Hon'ble Supreme Court held as under : "Section 5 gives the Courts discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles; the words "sufficient cause" receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the appellant. If the appellant makes out sufficient cause for the delay, the Court may in its discretion condone the delay in filing an appeal." 18. In Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others, AIR 1987 SC 1353 , the Hon'ble Supreme Court observed as under : "It must be grasped the judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 19. In N. Balakrishnan v. M. Krishnamurthy, AIR 1998 SC 3222 , Hon'ble Supreme Court observed as under : "It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea to shut the door against him. If the explanation does not smack of mala-fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. If the explanation does not smack of mala-fides or it is not put-forth as part of a dilatory strategy the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the Court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the Courts compensate the opposite party for his loss." 20. In the application filed by the appellant under section 5 of the Limitation Act read with section 151 Civil Procedure Code seeking condonation of delay in filing the restoration application beyond period of limitation supported by his own affidavit as well as affidavit of one Shri Devi Prasad Rathi, Advocate, Phalodi, it was specifically mentioned that he is an old person and for last 9-10 years, he has been suffering from various diseases. The counsel engaged by the appellant before the trial court assured him that instead of his attending every date of hearing, he would be intimated as and when his physical presence would be necessary in the court. He has stated that no such information was given by his counsel either before pleading 'no instructions' or even thereafter and, therefore, he could not know that his suit has been dismissed in default. However, on 30.8.1987 when he attended the Court of Judicial Magistrate, Phalodi in a criminal matter in which challan was filed against him for the offence under section 448 I.P.C., he was informed by his counsel Shri Devi Prasad Rathi that the suit filed by the appellant has already been dismissed in default. The fact regarding dismissal of suit was mentioned in the charge-sheet. On 13.8.1986 after having come to know of this fact, the appellant came to Jodhpur and made efforts to contact his counsel representing his suit. On 5.9.1987, he was informed by the counsel that his suit has already been dismissed. The fact regarding dismissal of suit was mentioned in the charge-sheet. On 13.8.1986 after having come to know of this fact, the appellant came to Jodhpur and made efforts to contact his counsel representing his suit. On 5.9.1987, he was informed by the counsel that his suit has already been dismissed. The appellant being old, infirm and poor person somehow managed the counsel fee and engaged another counsel Shri Devi Prasad Rathi and filed an application for restoration of the suit. The appellant stated these facts on oath in the affidavit. An affidavit of Shri Devi Prasad Rathi, Advocate Phalodi was also filed in support of the application for condonation of delay. Thus, from the application supported by the affidavits of the appellant and Shri Devi Prasad Rathi, the appellant satisfactorily explained sufficient cause by which he was prevented to appear on the date on which the suit was fixed for settlement of issues. 21. From the material on record, in my considered opinion, the appellant has satisfactorily explained sufficient cause which prevented him to appear before the trial court on the date when the suit was dismissed in default. Thus, the trial court further erred in dismissing the application filed by the appellant for condonation of delay and restoration of the suit. 22. In the instant case, indisputably, the suit was fixed for settlement of issues which was to be done by the learned trial court and appellant was not to do anything so far as settlement of issues are concerned and, therefore, there was hardly any necessity for the appellant to be present in court. In my considered opinion, the trial court erred in dismissing the suit even if the counsel appearing for the appellant pleaded "no instructions". Even otherwise, on pleading of no instructions by the counsel representing appellant, the trial court was under an obligation to have issued notice to the appellant before the dismissal of the suit because the counsel engaged by the appellant continued to represent appellant until he is permitted to withdraw in writing. It is a settled law that for the inaction or omission of the counsel, the litigant should not be made to suffer. The trial court was in error in not adopting the justice oriented approach before dismissing the suit. It is a settled law that for the inaction or omission of the counsel, the litigant should not be made to suffer. The trial court was in error in not adopting the justice oriented approach before dismissing the suit. In Rafiq v. Munshilal, AIR 1981 SC 1400 , Hon'ble Supreme Court observed as under : "The problem that agitates us is whether it is proper that the party should suffer for the inaction deliberate omission or misdemeanour of his agent. The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted." 23. In this view of the matter, the order of trial Court dismissing the suit cannot be sustained. Similarly, the order of learned trial court refusing to restore the suit to its original number is also erroneous and liable to be set aside. 24. In view of the aforesaid discussion, this appeal succeeds and is allowed. Accordingly, the orders passed by the learned trial court dated 13.8.1986 and 9.12.1993 are hereby set aside and quashed. Civil Original Suit filed by the appellant is restored to its original number. Trial Court is directed to decide the suit expeditiously. Parties are directed to appear before the Additional District Judge, Phalodi on 8.11.2001.Appeal allowed.