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2006 DIGILAW 2642 (RAJ)

Prabhu Lal v. Madan Lal

2006-09-05

N.K.JAIN

body2006
Judgment Narendra Kumar Jain, J.-Heard learned Counsel for both the parties. 2. The following substantial question of law arises for adjudication in this second appeal : “WHETHER, in the facts and circumstances of the case, the defendant was at fault in not producing the evidence and not contesting the suit in the Lower Court?” 3. The learned Counsel for both the parties submitted that arguments of both the parties in the above question be heard today itself and appeal be disposed off finally. The prayer is allowed. Heard the learned Counsel for both the parties on the above formulated question. 4. Briefly stated the facts of the case are that the plaintiff-respondents filed a suit for permanent injunction in the lower Court in respect of the property, in dispute, which was decreed by the lower Court vide Judgment dated 21.09.1990 in Civil Suit No. 209/1989. However, an appeal was preferred by the defendants, but the same was also dismissed. Hence, this second appeal has been preferred on behalf of the defendant-appellants. 5. Learned Counsel for the defendant-appellants Mr. M.M. Ranjan, submits that after service of summon of the plaint, the defendants engaged Counsel in the lower Court and the written statement was filed in the suit, wherein the suit of the plaintiff was contested by the defendants. After framing of the issues in the matter the case was fixed for plaintiff’s evidence. The suit remained pending in the lower Court for plaintiff’s evidence upto 25.07.1990 and thereafter the suit was fixed for defendant’s evidence on 21.09.1990. However, on 21.09.1990 learned Counsel for the defendant-appellants pleaded “no instructions” in the matter and consequently the lower Court proceeded in the suit under Order 17 Rule 3(a) of the Code of Civil Procedure, 1908 and closed the evidence of the defendants. The Lower Court heard the arguments of the plaintiff on the same day and decreed the suit. Learned Counsel for the defendant-appellants further, submits that there was no negligence on the part of the defendants in not contesting the suit as the defendants engaged their Counsel in the lower Court and they also filed written statements to the plaint. The lower Court recorded the statement of the plaintiff’s witness lastly on 25.07.1990 and fixed the suit on 21.09.1990 for defendant’s evidence, but defendants were not informed by their Counsel for producing the defendants witnesses for recording their statement. The lower Court recorded the statement of the plaintiff’s witness lastly on 25.07.1990 and fixed the suit on 21.09.1990 for defendant’s evidence, but defendants were not informed by their Counsel for producing the defendants witnesses for recording their statement. Otherwise, there was no reason for not examining their witnesses on their behalf . In these circumstances, his contention is that on account of “no instructions” pleaded by the learned Counsel for the defendant-appellants before the lower Court, the suit was heard and decreed ex-parte against the defendants. In support of his contention, he referred Malkiat Singh & Anr. vs. Joginder Singh & Ors., AIR 1988 SC Page 258 and Sushila Narahari & Ors. vs. Nanda Kumar & Anr., 1996 (5) SCC Page 529. 6. Learned Counsel for the plaintiff-respondents Mr. S.C. Gupta, submits that there is no illegality committed by the lower Court as after pleading no instructions by Counsel for the defendant-appellants, the lower Court had left with no option except to proceed under Clause (a) of Rule 3 of Order 17 of the Civil Procedure Code, and the lower Court rightly passed a decree against the defendants ex-parte. He also contended that so far as the merits of the case are concerned, there is no merit in the suit as well as in this second appeal and, therefore, the second appeal is liable to be dismissed. 7. I have considered the submissions of learned Counsel for both the parties and minutely scanned the impugned Judgment as well as the record of both the Courts below. 8. The order-sheet of the Lower Court shows that the defendants entered their appearance in the lower Court through Advocate and the written statement was also filed by them, wherein they denied the contents of the plaint and contested the suit. The issues were framed in the case on 11.07.1988 and the case was fixed for plaintiff’s evidence on 111.1988. The plaintiff’s evidence on 21.09.1990 and on that day the Counsel for the defendants pleaded no instructions in the matter and consequently the suit of the plaintiffs was decreed on the basis of the plaintiffs evidence. The appeal preferred by the defendants has also been dismissed by the First Appellate Court. 9. The plaintiff’s evidence on 21.09.1990 and on that day the Counsel for the defendants pleaded no instructions in the matter and consequently the suit of the plaintiffs was decreed on the basis of the plaintiffs evidence. The appeal preferred by the defendants has also been dismissed by the First Appellate Court. 9. In Malkiat Singh vs. Joginder Singh, (Supra) the Hon’ble Supreme Court in facts and circumstances of that case held that the defendants cannot be said to be careless/negligent and set aside the ex-parte decree. 10. The relevant Paragraphs No. 7 and 8 of the aforesaid Judgment of the Hon’ble Supreme Court, are reproduced as under : “The appellants in their application clearly pleaded that they were neither careless nor negligent and as soon as they learnt about the ex-parte decree dated 08.02.1992 and the order dated 111.1991, they filed the application to set aside the order and ex-parte decree. A perusal of the record also reveals that the appellants were neither careless nor negligent in defending the suit. They had engaged a Counsel and were following the proceeding. In this fact situation, the trial Court, which had admittedly not issued any notice to the appellants after their Counsel had reported no instructions, should have, in the interest of justice, allowed that application and proceeded in the case from the stage when the Counsel reported no instructions. The appellants cannot, in the facts and circumstances of the case, be said to be at fault and they should not suffer. In taking this view, we are fortified by a Judgment of this Court in Tahil Ram Issardas Sadarangani vs. Ramchand Issardas Sadarangani, AIR 1992 SCW 3445 = 1993 (Supp) 3 SCC 256, wherein the bench opined (Para 4 of AIR) : “It is not disputed in the present case that on 15.03.1974 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 of hearing should have been sent to the parties. 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 of 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 at fault and as such should not be made to suffer”. 8. “In view of what we have said above, this appeal succeeds and is allowed. The order of the trial Court dated 111.1991 and the ex-parte decree dated 08.02.1992 are set aside. We also set aside the order of the District Judge and that of the High Court dismissing the civil revision petition. The case is remanded to the trial Court for its disposal in accordance with law. The trial Court shall proceed with the case from the stage, where the case was on 111.1991. There shall be no order as to costs”. 11. In Sushila Narahari vs. Nanda Kumar, (Supra) the Hon’ble Supreme Court also considered similar question regarding the effect of withdrawal of “vakalatnama” by Counsel without notice to his client resulting in ex-parte order and, held as under : “4. A reading of the facts leaves us with no doubt that the advocate has derelicted his duty to inform the client by registered post if there was any non-cooperation on behalf of the appellants. Consequently, when the suit had come up for trial, he had withdrawn his vakalatnama without notice to the appellants. The trial Court set the appellants ex-parte and decreed the suit for specific performance. The application for condonation of delay of 40 days was filed. The Court refused to condone the delay. In view of the above, we find that she is well justified in filing the application with the delay. The delay is accordingly condoned. The ex-parte decree is set aside. The trial Court is directed to give opportunity to the appellants to cross-examine the witness examined by the respondents of the suit and also adduce evidence on her behalf . The trial Court is further directed to dispose of the matter as expeditiously as possible, preferably within one year from the date of receipt of the copy of the order”. The trial Court is directed to give opportunity to the appellants to cross-examine the witness examined by the respondents of the suit and also adduce evidence on her behalf . The trial Court is further directed to dispose of the matter as expeditiously as possible, preferably within one year from the date of receipt of the copy of the order”. After considering the submissions of learned Counsel for both the parties and the law laid down by the Hon’ble Apex Court in the above referred Judgment s, I find that the date, i.e., 21.09.1990 was the first date fixed for defendant’s evidence and on that date the defendant was not present in-person and in his absence. Counsel for the defendants pleaded no instructions in the matter resulting in ex-parte decree by the lower Court on the same day. Therefore, I find that there was no negligence on the part of the defendants in not producing the evidence on 21.09.1990 and in not contesting the suit as they had already engaged their Counsel in the Lower Court who pleaded “no instructions” in the matter without any notice to them. Had the defendants not interested in contesting the suit, there was no occasion for them to have engaged Counsel and file written statement and that they would not have challenged the Judgment s in first appeal or second appeal before this Court. The defendants want to contest the matter, therefore, they have challenged the ex-parte decree passed by the lower Court, even up to this Court. 12. Consequently, the question formulated above is answered in the manner that the defendants were neither negligent nor careless in contesting the suit or in not producing the evidence in the lower Court on 21.09.1990 as “no instructions” were pleaded on their behalf by their Counsel without notice to them and in their absence. 13. In view of aforesaid discussions, the second appeal is allowed. The impugned Judgment s and decrees passed by both the Courts below are set aside. The matter is remitted back to the Court of Civil Judge (Junior Division), Khetri with the direction to give an opportunity to the defendants to lead evidence on their behalf in the matter and thereafter to decide the suit afresh on merits in accordance with the provisions of law. .14. The matter is remitted back to the Court of Civil Judge (Junior Division), Khetri with the direction to give an opportunity to the defendants to lead evidence on their behalf in the matter and thereafter to decide the suit afresh on merits in accordance with the provisions of law. .14. Both the parties are directed to appear before the Court of civil Judge (Junior Division), Khetri on 010.2006. 15. Registry is directed to send back the record of both the Courts below immediately. 16. The lower Court will dispose of the suit as soon as possible taking into consideration that the present suit was filed in the year, 1983. There will be no order as to costs.