Madras High Court
V.P. Nagarajan vs Prabhavathi on 19 April, 1988
Equivalent citations: (1989)1MLJ475
ORDER Srinivasan, J.
1. This appeal is against an order dismissing the application in I.A. No. 858 of 1986 which was one to restore I.A. No. 637 of 1985 which was dismissed for default on 26.2.1986. I.A. No. 637 of 1986 was in turn to restore I.A. No. 486 of 1985 which was dismissed for default on 29-4-1985. I.A. 486 of 1985 itself was one for setting aside the exparte decree Passed on 22-1-1985 in a suit for specific performance bearing O.S. No. 14 of 1984, Sub-Court, Poonamallee.
2. In support of the application I.A. No. 858 of 1986, an affidavit was filed by the learned Counsel for the petitioners. It is very distressing to note that counsel not only filed the affidavit in support of the application but also signed the application as advocate for petitioners. In recent times, an unhealthy practice has grown up among the members of the Bar to come out with affidavits in support of their clients even without the clients themselves filing affidavits setting out the facts. Unfortunately the implication and consequences there of have not been realised by them. Under Order 31, Rule 2, C.P.C. affidavit will be evidence in an application and the court could order cross-examination of the deponent. Thus the advocate who files an affidavit in support of an application is liable to be cross-examined and by filing the affidavit, he takes the role of witness. The Bar Council of India has framed rules under Section 49(c) of the Advocates Act, 1961. Rule 13 in Chapter V in Part III of the rules reads thus-
An Advocate should not accept a brief or appear in a case in which he has reason to belief that he will be a witness, and if being engaged in case, it becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he retires without jeopardising his client's interests.
The indiscriminate way in which affidavits are filed by counsel on record nowadays makes me doubt whether any of them is aware of the above rule.
3. Even assuming that the circumstances of the case force counsel on record to file affidavits in support of the applications, they should take immediate steps to protect the interests of the client by not only requesting some other competent advocate to appear as counsel in that particular matter but also place the necessary materials before the Court to substantiate the averments made by them in their affidavits. The advocate who files an affidavit in court has no right to assume that his ipse dixit will be accepted by the court automatically without any security. Particularly when the opposite party challenges the correctness or truth of the averments in the affidavit, it is the paramount duty of the advocate who is the deponent of the affidavit to produce the best evidence to prove the contents of the affidavit. It will be nothing but vain glory if the deponent thinks that, as members of the legal profession occupy a very high status, his affidavit is to be accepted on its own weight without any corroboration. No doubt the elevated position of the Bar is indicated by the term 'la noblesse de la robs' (the aristocracy of the grown) but it should not be forgotten that ranks imposes obligations (nobles obelige). Of late, cases of negligence and dereliction from duty on the part of advocates are so rampant that the members of the noble profession should resort to introspection and bring about measures to restore the dignity and honour of the profession. This case is itself an eloquent example of gross negligence on the part of counsel on record. I would not have ventured to sermonise like this but for the argument of learned Counsel for the petitioner that he expected the court below to accept his affidavit as the gospel of truth.
4. Turning to the affidavit filed by the learned Counsel for the petitioner, he had stated that when the case was posted for enquiry on 26.2.1986, he was indisposed and could not attend the court. It has to be noticed that no details as to the nature of the said indisposition were set out in the affidavit. It was not stated as to when the advocate got indisposed and when he became alright. It was further stated in the affidavit that he requested his colleague advocate Mr.K. Arunachalam to represent him on 26.2.1986, in the court to pray for an adjournment. Here again, the day on which the petitioner's counsel requested his friend Mr.K. Arunachalam to represent him in court on 26.2.1986 had not been disclosed. In the next sentence it was averred that Mr. Arunachalam had forgotten the matter and hence he did not attend the court on 26.2.1986. It is seen that the matter was posted on 24.2.1986 and adjourned to 26.2.1986 for enquiry.
5. If the matter was adjourned from 24.2.1986 to 26.2.1986 learned Counsel must have requested to his friend Mr. Arunachalam on 24-2-1986 itself or 25-2-1986 or 26-2-1986 to attend the Court on 26-2-1986 on his behalf. If that was so, there was so, there was no reason as to why and how Mr. Arunachalam had forgotten the matter within such a short period.
6. There is no affidavit from the said Arunachalam in support of the claim made by the petitioner's counsel that the matter was entrusted to him to be attended on 26-2-1986. The least that the petitioner's counsel could have done is to produce an affidavit from Mr. Arunachalam supporting his version. The petitioner's counsel did not either produce any medical certificate or any other evidence in support of his version that he was indisposed and could not attend the court. In the absence of any detail of the illness and in the absence of any scrap of record to support his version, the court below was right in refusing to accept his version.
7. In the counter affidavit filed by the respondent-plaintiff in the court below in paragraph 6 it was stated very clearly that the allegations made in the affidavit of the advocate for the petitioner were not true. The allegation that the advocate was indisposed was expressly denied by the respondent. In view of such denial, it was the duty of the petitioner's counsel to have placed materials before the court to prove that he was actually indisposed on 26-2-1986 and could not attend the court. He should have also placed before the court materials to show that he had entrusted the matter to some other advocate. It is mentioned by learned Counsel for the petitioner that the court below has not decided the question whether the reason for non-appearance of the appellant on that particular day was genuine or not. When there was no material whatever to support the averments in the affidavit, the court below was right in taking into account the prior conduct of the appellant.
8. The suit was posted to 1-12-1984. After the conclusion of the hearing of the plaintiff it was posted for defendant's evidence. On that day, the defendant and his counsel were absent and the judgment in the case was reserved. The defendant filed I.A. 335 of 1984 for restoration and it was ordered. When the matter was again posted the defendant and his counsel were absent. On 22-1-1985, a decree was passed. It is the contention of the learned Counsel for respondent that it is not an ex parte decree and it is a decree passed on merits and evidence and therefore the application filed by the petitioner herein I.A. No. 486 of 1985 to set aside the decree is not maintainable. I am not inclined to go into that contention at present as it does not arise for my consideration in the present proceedings.
9. The petitioner filed I.A. No. 496 of 1985 to set aside the decree and that was dismissed for default on 29-4-1985. He filed another application I A. No. 637 of 1985 to restore I A. No. 486 of 1985 and it was dismissed for default on 26-2-1986. The present application is to restore that application to file. Having regard to the conduct of the appellant, the court below was right in dismissing the application for restoration filed in I A. No. 853 of 1986.
10. An objection is taken by learned Counsel for the respondent as to the maintainability of the appeal. Learned Counsel placed reliance on a decision of a Division Bench of this Court in Sadaya Padayachi and Anr. v. Chinnasami Naidu 41 L.W. 811 : (1935)69 M.L.J. 99. Learned Counsel for the petitioner invites my attention to the amendment to Section 141, C.P. Code, brought in by Act 104 of 1976 whereby an explanation was added to the Section by which the proceedings under Order 9, Rule 9, C.P.C. were included in the expression 'proceedings' found in the Section. In view of the said amendment, the decision in Sadayo Padayachi and Anr. v. Chinnasamy Naidu 41 L.W. 811 : (1935)69 M.L.J. 99, will not help the respondent. Hence the appeal is maintainable.
11. Since I have dealt with the appeal on merits and come to the conclusion that the order of the court below is correct in the facts and circumstances of the case this appeal fails and is dismissed. There will be no order as costs.