Punjab-Haryana High Court
Lachman Dass vs Food Corporation Of India on 6 December, 2004
Equivalent citations: (2007)146PLR391
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The defendant is in revision petition aggrieved against the order passed by the Courts below whereby application for setting aside of ex parte decree was dismissed.
2. In a suit for recovery filed on behalf of the plaintiff, the defendant put in appearance through his Advocate on 15.05.1995 after filing power of attorney and sought time to file written statement. Time was granted to the defendant to file written statement again on 12.6.1995. Subsequently, on 21.07.1995 adjournment was sought as written statement could not be filed. Adjournment requested was granted on payment of Rs. 50/-as costs. On 11.8.1995, costs were paid but written statement still was not filed and time was granted on payment of Rs. 100/- as costs. On the next date i.e. 5-9-1995, neither written statement was filed nor costs were paid but learned Counsel for the defendant made a statement that he has no instructions. Since the defendant was not present, he was proceeded against ex parte. The case was adjourned for ex parte evidence on 23.9.1995. Subsequently, ex parte decree was passed on 2.11.1995. The present petitioner moved an application for setting aside ex parte decree on 25.10.1999 which has been dismissed by the learned trial Court as well as by the learned first Appellate Court. It has been found that the petitioner has not stepped into the witness box. Rather he has examined one Gurbachan Singh Lamberdar who has deposed that Lachman Dass petitioner was getting threats from militants in 1994 and, therefore, the petitioner remained underground from November, 1994 in order to protect his life. It has been found that such plea was not raised in the application and that such plea is not tenable in view of the fact that terrorism came to an end in 1992-1993 and, therefore, there is no question of the petitioner remaining underground due to fear of terrorists in November, 1994.
3. Before this Court, the only argument raised by the learned Counsel for the petitioner is that his counsel before the learned trial Court has pleaded no instructions on 5.9.1995 but the learned trial court has not issued any notice to the defendant-petitioner and, thus, he could not have been proceeded against ex parte. Reliance is placed upon the judgments of the Supreme Court in cases Tahil Ram Issardas Sadarangani and Ors. v. Ramchand Issardas Sadarangai and Anr. ; Malkiat Singh and Anr. v. Joiginder Singh and Ors. (1998-1) 118 P.L.R. 271(S.C), Sushila Narahari and Ors. v. Nandakumar and Anr. (1996-3) 114 P.L.R. 162, as well as Single Bench judgment of this Court reported as Kirpal Kaur and Ors. v. Kulwant Kaur and Ors. (1993-2) 104 P.L. 689 and Surinder Kumar v. Ram Nath and Anr. 2000(2) P.LJ. 206,
4. However, I am unable to agree with the arguments raised by the learned Counsel for the petitioner. The pleading of no instructions at a stage when the defendant was to file written statement cannot be a ground for setting aside of ex parte decree after more than four years. The petitioner has engaged his Advocate. The Advocate has filed power of attorney on the first date of hearing and sought adjournment. Whether in these circumstances it was the responsibility of the Advocate to run after the petitioner to coax him to file written statement is a question which arises in the present case. Hon'ble Supreme Court in Kedia Leather and Liquor and Anr. case (supra), while considering somewhat identical situation where the officers of the Government of India have not given information to its Advocate, observed to the following effect:
...We fail to understand why the officers of the department concerned have not shown any sense of urgency to intimate the decision, if any taken, to the learned Counsel well before the date of hearing rather than leaving it to the learned Counsel to ascertain from them if any decision has been taken. Is it not the responsibility of the officers concerned to keep the counsel informed of the development so that this Court's time is not wasted and the matter is not required to be adjourned for ascertaining the decision, if any....
5. Still farther, a Single Bench of Rajasthan High Court in Prabhu Lal's case (supra), while considering identical plea has found that there may be circumstances where after engaging the lawyer, the litigant may not be required to take any effective step and there may be cases where the litigant may be required to be vigilant and attendant with day to day progress of the litigation, ft was held that in the second category of cases, it cannot be expected of a lawyer every time to be on his toes to rush after the litigant and only after failing to contact to plead no instruction. It was held as under:
...There may be circumstances where after engaging the lawyer, the litigant may not be required to take any effective step and may well rest contented awaiting information from the lawyer, as aginst which there may be cases and cases where the litigant may be required, to be vigilant and attendant with day to day progress of the litigation, In the second category of cases, it can not be expected of a lawyer, on the other hand, every time to be on his toes to rush after the litigant, and only after failing to contact, to plead no instruction....
6. A Division Bench of this Court in the case reported as Suresh Kumar v. Daryai and Ors. (1996-3) 114 P.L.R. 379, did not agree with the argument that the Court should have given a fresh notice to the petitioner after his counsel has pleaded no instructions because merely by engaging a counsel the petitioner did not get animmunity from prosecuting his case by appearing in the Court. The Division Bench held to the following effect:
The argument of the learned Counsel that the Commissioner should have given a fresh notice to the petitioner after his counsel had pleaded no instructions on 13.3.1991 cannot be accepted because merely by engaging a counsel, the petitioner did not get an immunity from prosecuting his case by appearing in the Court. It was for the petitioner to have looked after his interest in the case by personal appearance or by ensuring the appearance of his duly instructed counsel. If a party engages a counsel without giving full instructions to him and suffers an adverse order because the counsel pleads no instructions, then blame squarely lies on that party and such party cannot plead that it was prevented from appearing in the Court due to sufficient cause.
7. Still further, the Court concluded that there is no provision in the Code of Civil Procedure for giving a fresh notice to the party which is already represented by an Advocate or Pleader who on any particular day pleads no instruction. It has been further found that his practice will not only delay the proceedings of the suits and other cases but will encourage unscrupulous defendants to take advantage of this requirement by engaging successive counsel and then make them to withdraw from the case on the ground of lack of instructions or making them to plead no instructions. It was concluded to the following effect:
(i) There is no provision in the Code of Civil Procedure for giving a fresh notice to the party which is already represented by an Advocate or Pleader who on any particular day pleads no instructions.
(ii) There is no provision in the Code of Civil Procedure indicating as to who will bear the burden of expenses for issue of fresh notice to such party or defendant. Neither the plaintiff nor the State ex-chequer can be made to bear the cost of such notice because neither of them is at fault.
(iii) This practice will not only delay the proceedings of the suits and other cases but will encourage unscrupulous defendants to take advantage of this requirement by engaging successive counsel and then make them to withdraw from the case on the ground of lack of instructions or making them to plead no instructions. If notices are to be issued every time then perhaps the case may never end.
(iv) Such a practice would add to the mounting arrears of cases and would completely frustrate the object of expeditious disposal of the disputes by the Courts, Judicial Tribunals and Quasi Judicial Authorities.
8. In the said case, it was found that neither Tahil Ram's case (supra) or Kirpal Kaur's case (supra) lays down a guiding principle of law that in each case where a counsel appearing for a party pleads no instructions, it is incumbent upon the Court or Judicial Tribunal or Qasi Judicial Authority to issue fresh notice to the party. It was found that in both these judgments law has not been laid down to the effect that where an Advocate withdraws from a case or pleads no instructions, a fresh notice invariably be given to the defendant. The judgment of the Division Bench was followed by this Court in case reported as Bhairo Parshad v. Karm Chand and Ors. 2001(1) P.L.J. 15.
9. In Sushila Narahari and Anr. v. Nandakumar and Anr. (1996-3) 114 P.L.R. 162 as well as in Malkiat Singh and Anr. v. Joginder Singh and Ors. (1998-1) 118 P.L.R. 271, Hon'ble Supreme Court has found that the appellants were neither careless nor negligent in defending the suit. It is in view of the said finding, the ex parte proceedings were set aside. The judgment of learned Single Judge of this Court in Surinder Kumar's case (supra) has not noticed the judgment of Division Bench of this court in Suresh Kumar's case (supra).
10. In fact, in Section II, Chapter II of Part II of the Rules framed by the Bar Council of India under Section 49(1)(c) of the Advocates Act, 1961, it is contemplated 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. The relevant Rule 12 reads as under:
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.
11. Under Rule 12 of Chapter II of the Bar Council of India Rules framed by the Bar Council of India, an Advocate is not expected to withdraw from engagements once accepted, without sufficient cause and unless reasonable and sufficient notice is given to the client. In fact, the Advocate is a vital link to facilitate the working of the Courts. An Advocate is an officer of the Court. He has to assist the Court in the administration of justice. At the same time, the Advocate has to fearlessly uphold the interest of his client. The obligations of an Advocate towards the Court are regulated in terms of Order HI Rule 4(2) of the code of Civil Procedure which are to the effect that the appointment of an Advocate filed in the Court shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court. Necessarily, once an Advocate accepts the engagement on behalf of a client, the Advocate must continue to represent such client before the Court. However, in terms of Rule 12 of the Bar Council of India Rules, he has the option to withdraw from the engagement after giving reasonable and sufficient notice. Whether the notice has been given by the Advocate to his client or not is a question which is between the client and the Advocate. The client as a matter of course and right cannot take the benefit of lack of such notice. There may be circumstances where the Court considers the action of an Advocate pleading on instructions as to be prejudicial to the interest of the client without his fault but if the action of an Advocate pleading no instructions is on his client, it would be perfectly justified for the Court to proceed against such client. The privilege of an Advocate cannot be allowed to be misused by the unscrupulous litigant to persuade his Advocate to plead no instructions at the crucial hearing of the case so as to necessitate serving of notice to the client. Such interpretation, as sought by the petitioner, would defeat the cause of justice and, in fact, paralyse the working of the Court itself.
11. Therefore, the mere fact that an Advocate has pleaded no instructions would not be sufficient to warrant issuance of notice to the client of such an Advocate and failure to issue such notice would not warrant setting aside of proceedings initiated thereafter. In fact, in case reported as Alok Spices v. State of Kerala 1994 (205) Income Tax Reports 415, Hon'ble Supreme Court has desired that at a stage when the personal presence of the party in the Court is normally expected, it would be proper to ensure that the learned Counsel who seeks to retire from the case at the very last moment had earlier given notice to the client. It was held as under:
While we do not propose to express any opinion as to the circumstances in which the Court should ensure intimation by counsel to the client of his intention to retire from the case, however, it appears that at the stage of proceedings where the personal presence of the party in the Court is not normally expected - such as the stage of final arguments in a suit or the arguments in appeal - other than the stage, say of evidence where the party's presence is normally expected, it might, perhaps, be proper to ensure that learned Counsel who seeks to retire from the case at the very last moment had earlier given notice to the client.
12. In M. Sidda Reddy and Ors. v. Ladshmamma 2003 (3) Recent Civil Reports (Civil) 321, learned Single Judge of Andhra Pradesh High Court while considering the consequences of pleading no instructions by an Advocate without affidavit of such an Advocate to the effect whether he has given prior intimation to his client, the court concluded as under:
...Without such material it is not desirable to come to the conclusion that without prior intimation to his clients, the learned Advocate for the appellants in the trial Court reported no instructions. I am of the opinion that in any case if an Advocate acts in or deals with his clients in violation of any of the Rules of conduct framed by the Bar counsel of India, the remedy available to the clients concerned is to proceed against the Advocate for his alleged misconduct before the State Bar Council concerned. What transpired between the learned Advocate for the appellants in the trial court and the appellants is not known either to the lower court or to this court. I, therefore, hold that in the absence of any positive proof, a court cannot presume that the learned Advocate for the appellants before the trial court reported no instructions for the appellants without prior intimation to them and on that ground set aside the ex parte orders in any court proceedings.
13. I am in respectful agreement with the view expressed by the learned Single Judge of Andhra Pradesh High Court and in view of this binding precedent of Division Bench of this Court in Suresh Kumar's case (supra), I find that the petitioner has failed to establish his bona fides in prosecuting the suit after engaging his Advocate and has sought setting aside of ex parte proceedings after more than four years and that too on false plea.
Therefore, I do not find any patent illegality or material irregularity in the finding recorded by the learned Courts below refusing to set aside the ex parte judgment and decree passed against the petitioner warranting interference in exercise of revisional jurisdiction.