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Rajasthan High Court · body

2007 DIGILAW 2355 (RAJ)

Narayan Lal Bagra v. Hanuman Sharma

2007-12-10

R.C.GANDHI

body2007
JUDGMENT 1. - This appeal has been preferred against the order dated 22.10.2005 passed by the District Judge, Jaipur District, Jaipur whereby the Civil Misc. Application No. 41/95 presented under Order 9 Rule 13 read with section 151 of the Code of Civil Procedure for setting aside ex parte decree passed in Civil Suit No. 171/1990 has been dismissed. 2. A suit for specific performance was filed by respondent No. 1, plaintiff before the trial court i.e. District Judge, Jaipur. Originally, there were five respondents in the suit that is respondents Nos. 2 to 6 herein and 1 to 5 in the suit. The respondents were notified, despite service, they did not appear before the trial court and were proceeded ex-parte. In an application under Order 39 Rule 1 and 2 CPC, the trial court passed interim direction not to sell the disputed property despite that the respondents-defendants Nos. 6 to 8 purchased the property. Consequently, they were arrayed as party respondents in the suit as respondents No. 6, 7 and 8. They were served. They appeared through their counsel and sought time to file written statements, despite that written statements were not filed. On 12.8.1994, none appeared for the respondents. On 22.8.1994, counsel for the respondents appeared and pleaded no instructions. The Court passed the order that `Counsel for the respondents is present, counsel for the appellant is also present, respondents Nos. 6 to 8 are not present. They have not filed the written statement. They are proceeded ex parte. The trial court relying upon the statement of witnesses proceeded exparte to pass the exparte decree on 25.1.95. 3. An application under Order 9 Rule 13 CPC was presented on 12.5.1995 stating therein that the defendants appellants herein had no knowledge of the ex parte proceedings and ex pane decree. They were told by their counsel in the month of April, 1995 that the next date in the suit is fixed on 10.5.1995 and their Advocate also instructed them that they need not to come to the court as he will act and appear before the court on their behalf. The appellants moved an application also for permission of the court to lead evidence to make out sufficient cause but later on it was withdrawn. The appellants moved an application also for permission of the court to lead evidence to make out sufficient cause but later on it was withdrawn. The trial court after hearing learned counsel for the parties and on appreciation of the material before it, dismissed the application filed under Order 9 Rule 13 CPC vide impugned order. Learned counsel for the appellants also filed an application under section 5 of the Limitation Act seeking condonation of delay of 107 days showing sufficient cause which prevented them to approach the court. 4. Appeal has been preferred on the ground that the trial court was not right in relying upon the statement of learned advocate who pleaded no instruction without complying with the requirement of Rule 12 of the Bar Council of India Rules which places an obligation upon the Advocate ordinarily not to withdraw from engagement once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall have to refund such part of the fee as has been earned. 5. Respondent No. 7 Motilal in the suit has not been impleaded by the appellants in the appeal as party respondents. However, the appellants have filed an application for his impleadment as party respondent. The court vide order dated 8.10.2007 observed that he being a necessary party, the question regarding impleadment shall be considered at a later stage. Therefore, it is hereby ordered that legal heirs of the Motilal shall have a right to address the court. 6. Heard learned counsel for the parties and perused the record. 7. Learned counsel for the appellants, in support of his plea, has relied upon judgments of the Supreme Court reported in 1993 Supp.(3) SCC 256, 1996(5) SCC 529 and 1998(2) SCC 206 and the judgment of the Gujarat High Court reported in AIR 1988 Gujarat 48. In rebuttal, learned counsel for the respondents has relied upon the judgment of this court delivered in S.B. Civil Revision Petition No. 114/2003 decided on 14.11.2003. 8. The point in issue is as to whether the conduct of the learned advocate by making a statement of no instructions before the court is permissible in law and whether under such circumstances court can rely upon such statement in the interest of justice. 8. The point in issue is as to whether the conduct of the learned advocate by making a statement of no instructions before the court is permissible in law and whether under such circumstances court can rely upon such statement in the interest of justice. This point directly in issue before the Gujarat High Court in case title Patel Maganlal Dhanjibhai Godhasara and another v. Patel Laxmidas Narabhai Kansagara, reported in AIR 1988 Gujarat 48 was whether in a case when the lawyer pleads no instructions before the court and whether the court could permit him to withdraw from the case and could the court straightway expected to proceed further in absence of the litigant. Dealing with this, the court observed in para 7 to 9 as under: "7. The learned trial court Judge relied upon the statement of the advocate that the defendants were not turning up to give instructions for conducting the suit. This may be so. Even after accepting the statement of the learned Advocate, the learned Judge could not and should not have proceeded to dispose of the suit in absence of the petitioners defendants. With utmost respect, this appears to be an escape route or an easy way to dispose of the suit and add the number in disposal figure. Here, it is necessary to refer to the rules framed by the Bar Council of India under the provisions of section 49(1)(c) of the Advocates Act, 1961. Rule 12 of the aforesaid rules, which is relevnat for the purpose, reads as follows : "12. An advocate shall not ordinarily withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the fee as has not been earned." When the learned trial court judge accepted 'no instruction' purshis and permitted the advocate to retire from the case, he ought to have examined as to whether there was sufficient cause as to whether reasonable and sufficient notice was given to the petitioners defendants or not. As per the provisions of these rules, before permitting an advocate to retire from the case, the court must examine that (1) there is sufficient cause, and (2) reasonable and sufficient notice is given by the advocate to his client. As per the provisions of these rules, before permitting an advocate to retire from the case, the court must examine that (1) there is sufficient cause, and (2) reasonable and sufficient notice is given by the advocate to his client. It appears that the trial court was not at all aware about the provisions of these rules. In the instant case it appears to have so happened that the 'no instructions' purshis filed by the advocate is instanteneously accepted without verifying as to whether there was sufficient cause for the learned advocate to retire and whether there was reasonable and sufficient notice to the litigant. Before accepting 'no instruction' purshis, the Court must have examined the aforesaid aspects. Not doing so would certainly amount to failure to exercise the jurisdiction vested in it. 8. In cases where the Courts feels that 'no instruction' purshis was filed by the advocate for sufficient cause and with reasonable and sufficient notice to.the litigant, it should be necessary for the court, again to satisfy about the latter part of the rule which says that the advocate shall refund such part of the fee as has not been earned. In the large interest of justice and with a view to see that the common man is not put to avoidable hardship, it would be better and proper that the Court takes care of this aspect also and sees to it that the part of the fee which has not been earned by the advocate is refunded to the litigant. Without complying with this latter part of the rule, ordinarily the advocate should not be permitted to retire from the case. 9. Even when it is shown to the court that there is sufficient compliance with the provisions of the rule, as stated hereinabove it would be desirable and proper that the Court insists for the presence of the party in the court before permitting the advocate to retire from the case. In case, the court feels that it is impossible for the advocate or it is very much difficult for him to secure the presence of the party, the advocate may be permitted to retire. However, before doing so the Court must feel satisfied that the provisions of the aforesaid rules are complied with. Thereafter the court ought not to proceed further in absence of the parties. However, before doing so the Court must feel satisfied that the provisions of the aforesaid rules are complied with. Thereafter the court ought not to proceed further in absence of the parties. The court itself must make efforts to secure the presence of the parties. At any rate without issuing fresh summons directing the party to remain present in the Court either personally or through advocate and without informing him about the necessity to make appropriate arrangements for proceeding further with the case, the Court should not take further steps in the case. If this is not done the object and the spirit with which the aforesaid rule has been enacted by the Bar Council of India, will be frustrated. Moreover the basic principles of natural justice will also be violated." 9. This point is not res integra as the Supreme Court in the case title Tahil Ram Issardas Sadarangani and Ors. v. Ramchand Issardas Sadarangani and another, reported in 1993 Supp. (3) SCC 256 , in a similar proposition of law where the Advocate has withdrawn his appearance while the petitioner was absent and the Apex Court while dealing with such a proposition' pronounced in para 4 as under : "It is not disputed in the present case that on March 15,1974 when Mr. Adhia, advocate withdrew from the case, the petitioners were not present in court. There is noting 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." 10. In case title Sushila Narahari and others v. Nand Kumar and Another, reported in 1996(5) SCC 529 wherein the Apex Court while dealing with the case of setting aside ex parte decree wherein an application for condonation of delay was filed. The advocate withdrew from the proceedings without notice to his client as a result of which ex parte proceedings were taken against them. The advocate withdrew from the proceedings without notice to his client as a result of which ex parte proceedings were taken against them. The appeal was filed on the ground that it is dereliction of the duty of the advocate and litigant is not at fault, the apex court dealing with it, observed as under : "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 has withdrawn his Vakalatnama without notice to the respondents. The trial Court set the appellants exparte 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." 11. In case title Malkiat Singh and anr. v. Joginder Singh and Ors., reported 1998(2) SCC 206 , the facts are that the learned advocate pleaded no instruction and ex parte proceedings were taken against the litigant. His application under Order 9 Rule 13 CPC was dismissed and the appeal was preferred before the Supreme Court urging that the Advocate without notice to his client could not have pleaded no instructions. Dealing with it, the Supreme Court observed 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 8.2.1992 and the order dated 18.11.1991, 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 proceedings. 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 proceedings. 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 & Ors. v. Ramchand Issardas Sadarangani & Anr., (1993) (Supp.) 3 SCC 256 ." 12. Learned counsel for the respondents, in rebuttal, has relied upon the judgment delivered on 14.11.2003 in Revision Petition No. 114/2003 by this court. Perusal of the judgment shows that it is not relevant on the point in issue and is of no avail. 13. Learned counsel for the appellants has also made a submission that 30 days period of limitation is prescribed for any suit, appeal or application by the Schedule appended to Section 2(j) of the Limitation Act, 1963. Learned counsel for the appellants filed an application to lead evidence for condonation of delay in filing the application under Order 9 Rule 13 of CPC. The application has been withdrawn perhaps for the reason that the advocate might have thought it proper that without leading evidence he can. succeed in law and merits of the case. The Court has to deal with such a situation where the advocate pleaded particularly no instructions on 22.8.94. It was also stated in the application filed under section 5 of the Limitation Act that the advocate gave instructions to them that they need not to come on the next date in the court as he will act and appear on their behalf. Notwithstanding that if the advocate has not appeared and not informed his client despite that withdrew from the pleadings as a result of which an exparte proceedings were taken, litigant cannot be penalised for the default of an Advocate and the period of filing the application have to be counted from the date of knowledge. Notwithstanding that if the advocate has not appeared and not informed his client despite that withdrew from the pleadings as a result of which an exparte proceedings were taken, litigant cannot be penalised for the default of an Advocate and the period of filing the application have to be counted from the date of knowledge. For reckoning period of limitation the Supreme Court in case title Madan Lal v. State of U.P. and Ors., reported in AIR 1975 SC 2085 observed as 5 under : "In such a case, if the aggrieved party came to know of the order after the expiry of the time prescribed for presenting an appeal from the order, would the remedy be lost for no fault of his? It would be absurd to think so. It is fundamental principle of justice that a party whose o rights are affected by an order must have notice of it." 14. For the aforesaid reasons, the impugned orders, under appeal, are set aside. The application for condonation of delay is allowed and the suit is sent back to the trial court to proceed in accordance with law and to decide it on merits. The appeal is accordingly allowed. No order as to costs.Appeal allowed. *******