Madhya Pradesh High Court
Smt. Benibai vs Smt. Champabai on 14 November, 1995
Equivalent citations: AIR1996MP243, AIR 1996 MADHYA PRADESH 243, (1996) JAB LJ 436
Author: R.S. Garg
Bench: R.S. Garg
JUDGMENT R.S. Garg, J.
1. The appellant/defendant who was proceeded ex parte in C.S.. No. 1-A of 1987 by the Court of Ist Addl. Judge to the Court of District Judge, Sagar during the pendency of this suit itself on 16-10-90 moved an application under Order IX, Rule 7, C.P.C. for setting aside the ex parte order which was passed against her on 27-6-90. The said application was hotly contested by the plaintiff who had by then produced the evidence and was awating the judgment.
2. After hearing the parties, the learned trial Court came to the conclusion that as the case was fixed for delivery of judgment, nothing further remained to be done by the parties, and application under Order IX, Rule 7 would not He. It, however, gave liberty to the defendant that the grounds raised in support of the application under Order IX, Rule 7, C.P.C. can be raised in an application under Order IX, Rule 13, C.P.C. Immediately after the ex parte judgment was delivered, the applicant/appellant moved an application under Order IX, Rule 13, C.P.C. which was registered as M. J.C. No. 3 of 1993. The said Court i.e. IV Additional Judge to the Court of District Judge, Sagar issued notice of the said application to the plaintiff/respondent who again opposed the application. The appellant, in the application, contended that the Court proceedings, recording the presence of Shri Lokras were among. The appellant being sick and infirm and as she was residing at Jabalpur, she was unable to attend the Court. She also submitted that she was not knowing the dates, therefore, she could not make proper arrangements. The plaintiff/ respondent, in reply, inter alia contended that the defendant was negligent in conduction of the proceedings. There was no sufficient cause, the correctness of the Court proceedings could not be challenged and neither the appellant was sick or infirm nor there existed any sufficient cause in favour of the appellant for setting aside the ex parte decree.
3. The parties led the evidence. After considering the evidence and hearing the parties, the learned trial Court came to the conclusion that the appellant could not make out a sufficient cause for setting aside the ex parte decree. The trial Court also held that the correctness of the Court proceedings could not be doubted and the appellant although (sic) the proceedings was negligent. The said order was passed on 23-12-92. Being aggrieved by the said order the appellant has preferred this appeal under Order XLIII, Rule 1-D of the Code of Civil Procedure.
4. Shri Ruprah, learned counsel for the appellant contended that the appellant could make out sufficient cause for her non-appearance. He also submitted that after the case was transferred from the Court of I Additional Judge to the Court of District Judge, Sagar to the Court of IV Addl. Judge, no proper notice was given to the appellant and also when the case was transferred from the Court of III Additional Judge to the Court of District Judge, Sagar to the Court of IV Additional Judge, neither a notice was given to the appellant's counsel or to the appellant nor the counsel Shri Lokras appeared for the appellant. He also submitted that the appellant who is an old and infirm woman of 80 years was not required to attend on every date and if her counsel pleaded no instructions then she cannot be penalized.
5. In reply to the above arguments, Shri Agrawal contended that the correctness of the Court proceedings cannot be challenged by party in collateral proceedings unless the same are put in issue before the same Judge, He also submitted that the conduct of the appellant before she was proceeded ex parte, would be material. He further submitted that there is no evidence on record to show, suggest or prove that she was sick, nor even the medical certificates have been filed in support of the alleged sickness."
6. The Supreme Court had an occasion to consider the question regarding the challenge to the Court proceedings. In State of Maha-rashtra v. Ramdas Shrinivas Naik, AIR 1982 SC 1249, the Supreme Court has held that the correctness of the Court proceedings cannot be challenged before the appellate or revi-sional Court unless such a challenge was made before the said Court because the conduct of the Judge in recording the proceedings cannot be put in issue. In light of the above said judgment the allegation of the appellant that Shri Lokras did not appear either before the III Additional Judge or before the IV Additional judge, cannot be accepted.
7. Shri Ruprah submitted that if a party has engaged a counsel and absolutely relied upon him then the lawyer who was an agent of the party, if neglects or fails to inform the party then the party should not be made to suffer. Placing reliance on Tahilram Issardas Sadarangani v. Ramchand Issardas Sadar-angani, AIR 1993 SC 1182, hesubmitted that if a counsel withdrew from the case and did not inform the party, then according to the Supreme Court a fresh notice ought to have been issued to the parties. He also relied upon Ramlal v. Arunadevi, 1994 (2) MPWN 120 and contended that for the lapses on the part of the counsel the party should not be made to suffer. On the other hand, Shri Agrawal contended that an application under Order. IX, Rule 13, C.P.C. can only be granted if sufficient cause for non-appearance is made out, Relying upon Suropchand Kirad v. Smt. Gondan-bai, 1977 (2) MPWN 492 and Kishorelai Mishra v. Prakash Chandra Parakh, 1979 (2) MPWN 125 he contended that an application under Order IX, Rule 13, C.P.C. cannot be allowed on humanitarian grounds. It is to be seen from the proceedings of the original suit that the case was fixed before the III Additional Judge on 13-3-90 which was adjourned to 10-4-90. On 9-4-90 the suit was transferred from said Court to the Court of IV Addl. Judge. On 10-4-90 Shri Lokras, counsel for the appellant appeared and the learned Judge was pleased to adjourn the case to 27-6-90 for recording the plaintiff's evidence. For 27-6-90 . the proceedings read as under:--
Matter in Vernacular Omitted (Ed.) Thereafter, on the same date an application under Order. XXVI, Rules I and 2 read with Section 151 of the C.P.C. was filed. On that very date the counsel for the plaintiff paid Rs. 40/- as penalty for the suit document. The case was thereafter adjourned to 10-7-90. We are not concerned with what happened after 27-6-90. It is to be seen that Shri Lokras appeared in the Court and pleaded no instructions. In my opinion, it is always the duty of a counsel before pleading no instructions to inform the party that for a particular reason he shall not be appearing in the case and may plead no instructions. The confidence deposed by parties in the counsel is most important. A person who is not present in Court pre supposes that because of engagement of a counsel his interest would be properly looked after. It is the duty of a counsel to inform him before he proceeds to plead no instructions. If Shri Lokras had pleaded no instructions it was the duty of the Court also to inquire from Shri Lokras as to why and under what circumstances he was pleading no instruc tions. The Court cannot be a silent spectator to the scene which is staged in the Court. If a counsel declined to act up to his duty then the Judge is posed to the duty to the judicial administration. The judicial conscience of the Judge should always be satisfied before he permits a lawyer either to withdraw or to retire from the case. In the instant case, it does not appear from the proceedings that the learned Judge had taken all necessary steps to ensure that the counsel had sufficient reason not to appear for the party who engaged him or to plead no instructions. If a Judge in disregard of duties permits a lawyer to with draw from the case then he is virtually violat ing the principle of justice. A party who reposes confidence and relies on counsel is entitled to be under the belief that his interest would be looked after properly by the counsel. A Judge ordinarily should not permit a lawyer to plead no instructions unless the lawyer satisfies the judicial con science of the Court that for the compelling reasons he was posed to plead no instructions. In the instant case on that short ground alone the ex parte order passed on 27-6-90 is liable to be set aside.
8. The appellant, who claims to be an old woman of about 80 years was residing at Jabalpur and was supposed to conduct the case at Sagar. It is no where shown as to why her presence was required on the earlier dates. Learned Judge was unnecessarily influenced by the conduct of the appellant on the earlier dates. According to Order IX, Rule 13 a party is required to satisfy the Court that there was a sufficient cause which prevented the party from making appearance in the Court on the date when the case was called on for hearing. The words 'on the date when the case was called on for hearing' are the key words. A party is not required to show that it always sincerely and faithfully appeared in the case. There are many proceedings on which the presence of the parties is not needed. It is only the date of hearing that too such date when the presence of the parties is needed. In the instant case if on 27-6-90 the appellant was absent then she was required to satisfy the Court regarding the sufficiency of the cause only for the absence on 27-6-90. The application dated 16-10-90 speaks that the appellant had no notice nor she had received information from her counsel. The application further speaks that on 15-10-90 when she came to contact the counsel she was informed that the ex parte proceedings have already been drawn and the case was fixed on 16-10-90. Her age and the place of residence certainly are material considerations. No doubt, it is true that an application under Order IX, Rule 13, C.P.C. cannot be allowed on humanitarian grounds but the Courts cannot close their eyes to the realities of the life. The appellant, who resides at a long distance, who is an old and infirm and sick lady, as alleged, obviously is entitled to seek the benefit of the provisions of Order IX, Rule 13 of the C.P.C. In the instant case the appellant's categorical statement that she was not informed by the counsel, she had no knowledge about the dates and she being an old woman, living at Jabalpur, at a long distance from Sagar, obviously these three facts could not be disbelieved by the learned trial Court. The respondent merely contends that if the counsel for the appellant pleaded no instructions then the appellant has to thank herself. It cannot be gainsaid that after engaging a counsel, a party is supposed to sit in the Court on each date. The party is entitled to rely upon the counsel and if the counsel fails in his duty either to inform the party or to seek proper instructions before pleading no instructions in the Court then the party cannot be made to suffer.
9. In my opinion, the Court below was wrong in holding that the appellant could not make out a sufficient cause for setting aside the ex parte decree and the ex parte order. The appeal deserves to be allowed. The ex parte decree and the order dated 27-6-90 directing to proceed ex parte, are set aside. The appeal is allowed. The trial Court is directed to restore the said Civil Suit at its original number and give the parties proper opportunity to lead evidence. The parties shall remain present before the trial Court on 11th December, 1995. The Registry is directed to remit the records along with a copy of this order to the trial Court immediately so as to reach that Court before the date so fixed. There shall be no order as to costs.
10. Shri Agrawal, now submits that the suit is pending since long and as the ex parte decree is being set aside the trial Court be directed to dispose of the suit within a fixed period. It is directed that the trial Court shall make every endeavour to decide the suit finally by 31st of March, 1996, in accordance with law.