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Madhya Pradesh High Court · body

2001 DIGILAW 558 (MP)

Laxman Singh v. State Bank of Indore

2001-07-31

A.K.GOHIL

body2001
JUDGMENT The appellant-defendant has filed this miscellaneous appeal under Order XLIII Rule 1(d) of the Code of Civil Procedure (for short 'the Code') against the order dated 12.4.1999 passed by Additional District Judge, Badwaha (West Nimar), in Misc. Civil Case No. 119/96, whereby rejected the application for setting aside ex-parte judgment and decree under Order IX Rule 9 of the Code. The submission of Shri Sethi is that on 6.7.1993, no instructions were pleaded by the learned counsel for appellant-defendant before the trial Court and thereafter on 17.9.1993, after recording evidence, ex-parte decree was granted against him. But in September, 1996, he came to know about the passing of the ex-parte decree when, he received the notice in execution. His further submission was that on 6.7.1993, before pleading no instructions, the advocate neither gave any notice nor any intimation nor informed about pleading no instructions on behalf of the defendant; whereas he had engaged the services of the Advocate and it was the duty of the Advocate to give notice and to inform before pleading no instructions and thereafter also. He further argued that an application for setting aside decree alongwith an application under section 5 of the Limitation Act for condonation of delay was filed after getting knowledge, but the Court below, by order dated 12.4.1999, rejected the application without considering the bona fides of the appellant-defendant as well as the fact that the counsel had not given any notice before pleading no instructions and has also not given any intimation thereafter to the appellant-defendant. I have heard Shri A.K. Sethi, learned counsel for appellant-defendant and perused the record. None appeared for respondents. The Court below has rejected the application on the ground that in Civil Suit No. 8-B/92, the appellant-defendant had appeared on 19.8.1992 alongwith his Advocate Shri K.G. Chandre and thereafter the case was listed on 8.10.1992 for filing written statement but the written statement was not filed and for that, adjournments were sought on 13.11.1992; 28.11.1992; 4.1.1993; 27.1.1993; 24.2.1993; 20.3.1993; 29.4.1993, and on 6.7.1993 no instructions were pleaded on behalf of the appellant-defendant. It has been further observed by the Court below that after 19.8.1992, the appellant-defendant did not appear personally on any of the hearings. In the evidence, the defendant Laxmansingh submitted that his advocate had already obtained his signature on some blank papers for preparing written statement. It has been further observed by the Court below that after 19.8.1992, the appellant-defendant did not appear personally on any of the hearings. In the evidence, the defendant Laxmansingh submitted that his advocate had already obtained his signature on some blank papers for preparing written statement. Therefore, his Advocate was wrongly asking dates for filing written statement. From the evidence of Laxmansingh, Court has come to the conclusion that defendant Laxmansingh himself never tried to contact his Advocate to enquire about the progress of the case and neither he went to his Advocate nor had written any letter. In the miscellaneous civil case, evidence of Advocate Shri K.G. Chandre was also not recorded and he was also not examined. The trial Court has also rejected the application on the ground that the same has been filed after 3 years 13 days and that too is barred by time. As per the case of the defendant himself, the notice of execution was served on the father of the applicant on 27.8.1996 but he filed this application for setting aside ex-parte decree from the date of knowledge on 30.9.1996 which is also barred by time and no sufficient explanation has been offered on behalf of the defendant about this late filing and· rejected the application as the appellant-defendant has failed to make out a case either for condonation of delay or for setting aside ex-parte decree. No doubt under the Bar Council of India Rules for Standards of Professional Conduct and Etiquettes, it is the rule that an Advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Therefore, under the aforesaid Rules, it is necessary for the Advocate to give reasonable and sufficient notice before pleading no instructions. But in this case, it was the burden on the appellant-defendant to prove in the proceedings for setting aside ex-parte decree that no notice was given to him by the concerned Advocate before or after pleading no instructions. In this case, the appellant-defendant has not examined or produced Shri A.K. Chandre, Advocate, in evidence to prove this fact that he had not received any notice for him. In the absence of the evidence of the advocate, it cannot be presumed that the lawyer had not given any notice to the appellant. In this case, the appellant-defendant has not examined or produced Shri A.K. Chandre, Advocate, in evidence to prove this fact that he had not received any notice for him. In the absence of the evidence of the advocate, it cannot be presumed that the lawyer had not given any notice to the appellant. A litigant cannot pass on the entire responsibility on the lawyer. He is also duty bound to appear before the Court on day-to-day hearing and to give instructions and to keep a constant touch with his Advocate so that he may know about the progress of the case. Merely signing on some blank papers and on Vakalatnama and saying that it is the duty of his Advocate to inform him about day-to-day hearing cannot be accepted. An Advocate is nothing but a representative of his client and he acts and pleads after getting instructions from his client. Unless instructions are given by the client an Advocate cannot file a written statement and also cannot plead the cause. When repeatedly a client is not attending the hearings, an Advocate has no option but to plead no instructions. A litigant or a party in a suit cannot pass on the entire responsibility on his Advocate and if his Advocate pleads no instructions, in that case this alone cannot be an excuse and a ground for setting aside an ex-parte decree unless the Advocate is examined in the case and it is proved that no sufficient notice was given before or after the no instructions. It is true that the relationship between the litigant and Advocate is mutual and he represents the cause of the litigants in the Court which cannot be done without proper instructions. Therefore, only the Advocate cannot be held responsible for pleading no instructions. His duty may be to inform the litigant before pleading no instructions or thereafter by a proper and secure mode, but in this case since the defendant has not produced Shri A.K. Chandre in evidence, he cannot put the entire blame and for his own negligence for not contacting continuously for more than 3 years cannot claim a ground for setting aside ex-parte decree. The trial Court was fully justified in rejecting the application for want for proper pleadings and proof on record. The trial Court was fully justified in rejecting the application for want for proper pleadings and proof on record. Thus, the Court below has rightly dismissed the application and I do not see any ground for interference in this appeal. In the result, this appeal has no merits and is dismissed with no order as to costs. Record be returned immediately.