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2013 DIGILAW 1012 (MAD)

A. Natarajan v. P. P. M. Kanagaraj

2013-02-18

M.M.SUNDRESH, N.PAUL VASANTHAKUMAR

body2013
JUDGMENT N. Paul Vasanthakumar, J. 1. This Original Side Appeal is preferred against the judgment and decree in C.S.No.1164 of 2008 dated 30.9.2010 passed by the learned single Judge of this Court. 2. Plaintiff in C.S.No.1164 of 2008 is the appellant herein, who has filed the suit for recovery of money based on promissory note. The suit claim was Rs.18 lakhs with interest. 3. The contention of the appellant/plaintiff is that the parties have adduced evidence and when the suit was posted for arguments, the learned counsel for the appellant/plaintiff failed to note the listing of case in the cause list and hence he had not appeared before the Court. It is the further contention that the learned single Judge based on the evidence already recorded, dismissed the suit, without giving opportunity to the learned counsel for the appellant/plaintiff to argue the case. 4. The learned counsel appearing for the appellant/plaintiff submitted that the nonappearance of the learned counsel when the suit was posted for arguments was not wilful conduct on the part of the learned counsel and the same was only due to the failure to note the listing of the case in the cause list. The learned counsel further submitted that even though an application in A.No.1018 of 2011 to set aside the dismissal of the suit was filed before the learned single Judge, the same was dismissed stating that the appellant is having alternate remedy of filing appeal. Consequently this O.S. Appeal is preferred. 5. We have considered the submissions of the learned counsel appearing for the appellant/plaintiff as well as respondent/defendant and also perused the judgment and decree dated 30.9.2010 of the learned single Judge. 6. We are of the considered view that the suit having been filed for recovery of Rs.27,55,800/- including subsequent interest, based on promissory note and evidence on both sides having been adduced, the Court should have given an opportunity to the learned counsel for the plaintiff/appellant to argue the case. 7. The Honourable Supreme Court in the decision reported in AIR 1998 SC 258 (Malkiat Singh v. Joginder Singh) considered the said issue and in paragraph 7 held that the parties having engaged counsel and following the proceedings, and the Trial Court admittedly not issued notice to the parties after their counsel reported no instructions, ought not to have proceeded with the case. Here in this case, learned counsel for the plaintiff/appellant has not even expressed inability or reported no instruction. The learned counsel has only absented from appearance due to not noticing the cause list. 8. In the decision reported in AIR 2009 SC 514 : (2008) 13 SCC 395 (Secretary, Department of Horticulture, Chandigarh v. Raghu Raj) the Hon'ble Supreme Court in paragraphs 24 and 25 (in SCC) held thus, "24. When a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate. 25. In Rafiq v. Munshilal( (1981) 2 SCC 788 ) the High Court disposed of the appeal preferred by the appellant in the absence of his counsel. When the appellant came to know of the fact that his appeal had been disposed of in absence of the advocate, he filed an application for recall of the order dismissing the appeal and to permit him to participate in the hearing of the appeal. The application was, however, rejected by the High Court, inter alia, on the ground that there was no satisfactory explanation why the advocate remained absent. The aggrieved appellant approached this Court. Allowing the appeal, setting aside the order passed by the High Court and remanding the matter for fresh disposal in accordance with law, this Court stated: (Rafiqcase, SCC pp. 78990, para 3) “3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, … he is better informed in this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or mis-demeanour of his agent. The answer obviously is in the negative. Maybe 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. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law.” (Emphasis supplied) Further in paragraphs 39 to 41 (in SCC) the Apex Court held thus – "39. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law.” (Emphasis supplied) Further in paragraphs 39 to 41 (in SCC) the Apex Court held thus – "39. In our opinion, on the facts in their entirety, the High Court ought not to have proceeded to decide the appeal, we hold that the impugned order of the High Court is liable to be set aside. In view of this conclusion, we clarify that we may not be understood to have expressed final opinion one way or the other as regards interpretation of Rule 17 of Order 41 read with Rule 1 of Order 42. 40. Since the order passed by the High Court deserves to be set aside on a short ground and the matter is remitted to the High Court for fresh disposal in accordance with law, we refrain from expressing any opinion one way or the other on merits of the matter as well. As and when the matter will be placed for hearing before the High Court, the Court will pass an appropriate order after hearing the parties. 41. For the foregoing reasons, the appeal is allowed. The orders passed by the High Court dismissing the second appeal as also dismissing the recall application are hereby set aside and the matter is remanded to the High Court for fresh disposal in accordance with law after hearing the parties." 9. Applying the above decisions to the facts of this case, the judgment and decree of the learned single Judge dated 30.9.2010 is set aside and the suit is remitted to the learned single Judge to proceed from the stage from where the case was pending before passing decree and judgment on 30.9.2010. The learned single Judge is requested to post the matter for arguments and try to dispose of the suit on merits within three months. The learned counsel for the plaintiff as well as defendant in the suit are directed to appear and argue the case without fail as and when the case is posted for argument. The Original Side Appeal is disposed of with the above directions. No costs.