Punjab-Haryana High Court
Suresh Kumar vs Smt. Daryai And Ors. on 31 May, 1996
Equivalent citations: (1996)114PLR379
Author: T.H.B. Chalapathi
Bench: T.H.B. Chalapathi
JUDGMENT G.S. Singhvi, J.
1. This revision petition has been placed before the Division Bench in order to decide the question whether it is imperative for the Court in all cases to give a fresh notice to the defendant where the Advocate appearing for the defendant withdraws from the case or pleads no instructions.
2. Brief facts :-
Respondent-Smt. Daryai widow of Devi Sahai filed an application under the Workmen's Compensation Act, 1923 claiming Rs. Two lacs as compensation along with penalty and interest on account of death of her husband during the course of employment under petitioner-Suresh Kumar. She was represented by Shri D.C. Gupta, Advocate of Gurgaon. After considering the contents of the application, the Workmen's Compensation Commissioner, Gurgaon issued notice to the opposite parties. Respondent-Kartar Singh filed a written statement and denied the existence of relationship of employer and employee between him and the deceased. Kartar Singh also stated that he was not the owner of van No. DNH-9990 which had met with accident on 13.5.1990 resulting in the death of Mohan Pal. The Oriental Insurance Company also filed written statement and denied its liability. Petitioner-Suresh Kumar who was respondent No.2 before the Workmen's Compensation Commissioner was initially represented by Shri P.R.Yadav, Advocate. However, he did not file written statement and subsequently neither respondent no. 2 (petitioner herein) nor his counsel appeared to contest the case. On 13.3.1991, the Workmen's Compensation Commissioner passed an order for exparte proceedings. On the basis of the pleadings of the parties, the Commissioner framed five issues. Parties were given opportunity to lead evidence. After hearing the parties, the Workmen's Compensation Commissioner, Gurgaon passed order dated 9.3.1994 and directed petitioner-Suresh Kumar to pay Rs. 89,084/- as compensation and a sum of Rs. 10,000/- by way of penalty. Interest at the rate of six per cent per annum was also awarded to Smt. Daryai Devi. After six months and 18 days of the passing of the order dated 9.3.1994, the petitioner filed an application for setting aside exparte order on the ground that although he had appointed Shri P.R. Yadav, Advocate as his counsel but on 13.3.91, Shri Yadav made a statement that he had no instructions from the client and, therefore, it was necessary for the Workmen's Compensation Commissioner to have sent a notice to him and the proceedings held after 13.3.1991 were illegal because no such notice was given to him (petitioner-applicant). The Workmen's Compensation Commissioner held that the application was filed much after expiry of the period of limitation and that there was no ground to set aside the order dated 9.3.1994.
3. When the matter came up for hearing before one of us (T.H.B. Chalapathi, J.), learned counsel for the petitioner argued that when the counsel appearing for the petitioner had pleaded no instructions, it was the duty of the Workmen's Compensation Commissioner to give fresh notice to the petitioner and failure on the part of the Workmen's Compensation Commissioner to do so, has the effect of vitiating the order dated 9.3.1994. He placed reliance on a decision of the Supreme Court in Tahil Ram v. Ram Chand, AIR 1993 S.C. 1182 and also on a judgment of this Court in Kirpal Kaur v. Kulwant Kaur, (1993-2)104 P.L.R. 689. Learned Single Judge considered the submissions and opined that the decision of the Supreme Court in Tahil Ram's case (supra) cannot be considered as laying down a proposition of law that in every case where the counsel pleads no instructions, the Court is under a duty to issue fresh notice to the party to whom that counsel was representing earlier. Learned Single Judge also expressed his disagreement with the view taken by the learned Single Judge in Kirpal Kaur's case (supra) and made reference to the larger Bench.
4. Shri R.S. Sihota, learned counsel appearing for the petitioner, reiterated his submissions which he had advanced before the learned Single Judge. He argued that a litigant cannot be penalised due to the fault of his counsel and if a duly authorised Advocate pleads no instructions without the knowledge of the party, then a notice is necessary to be given to such party.
5. Workmen's Compensation Act, 1923 (for short, the Act) is a piece of legislation enacted to provide for the payment by certain classes of employers to their workmen compensation for injuries etc. by accident. Chapter-II of the Act enumerates the employer's liability for compensation. Chapter-Ill deals with the Workmen's Compensation Commissioners. Section 22 contemplates making of applications for compensation. Section 24 relates to appearance of parties. It provides that any appearance, application or act required to be made or done by any person before or to a Commissioner may be made or done on behalf of such person by a legal practitioner...... . Section 32 as it stood prior to its amendment in the year 1950 empowered the Governor-General-in-Council to make rules to carry out the purposes of the Act. Workmen's Compensation Rules, 1924 have been framed under Section 32 of the Act. Part-V of the Rules specifies the procedure which is required to be followed by the Commissioner in disposal of the cases under the Act or the Rules. Rule 20 lays down that the applications referred to in Section 22 of the Act may be sent to the Commissioner by post or may be presented to him or any of his subordinates authorised by him. Rule 26 postulates issue of notice of the application filed by the applicant unless it is dismissed under Rule 24 or Rule 25. Rule 27 enables the opposite party to file written statement. Rule 28 relates to framing of issues. Rule 41 makes applicable a number of provisions of the First Schedule to the Code of Civil Procedure including those contained in Order 9 to the proceedings before the Commissioner. Proviso to this rule empowers the Commissioner to apply the provisions of the Code of Civil Procedure with such alteration as may be necessary for the purpose of decision of the application. He is also empowered to proceed otherwise than in accordance with the procedure prescribed in the Code of Civil Procedure if he is satisfied that interest of the parties will not be prejudiced. However, for doing so, there must exist sufficient reasons.
6. From the above, it is clear that the provisions contained in Order 9 Rule 13 of the Code of Civil Procedure regarding setting aside of the exparte decree by a defendant are applicable to the proceedings under the Act. Under that provision, a defendant can apply to the Court to set aside exparte decree if he satisfies the Court that summons was not duly served or that he was prevented by any 'sufficient cause' from appearing when the suit was called on for hearing. In the context of the provisions of the Act, it would be appropriate to say that a non-applicant in the proceedings before the Workmen's Compensation Commissioner may apply to the Commissioner who had passed exparte order for the purpose of setting it aside in case the non-applicant satisfies the Commissioner that the summons was not duly served or that he was prevented by any sufficient cause from appearing when the application was called for hearing.
7. In the instant case, we are not required to examine a situation in which summonses are not duly served on the non-applicant. Therefore, limited issue to be examined by us whether the non-applicant was prevented by any sufficient cause from appearing before the Commissioner when the case was taken up for hearing. Here it is necessary to reiterate that the petitioner had engaged Shri P.R. Yadav, Advocate and Shri Yadav represented him before the Commissioner. The same Shri P.R. Yadav was representing Shri Kartar Singh also. It is a different thing that no written statement was filed by the petitioner to contest the application filed by Smt. Daryai. It appears that the petitioner did not fulfil his obligation qua Shri P.R. Yadav and, therefore, on 13.3.1991 Shri P.R. Yadav made a statement that he had no instructions from his client. The petitioner did not appear before the Commissioner either prior to 13.3.1991 or on 13.3.1991 or thereafter. In this factual background, it was perfectly justified for the Commissioner to proceed exparte against the petitioner.
8. 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.
9. Some of the other reasons why the aforementioned argument of the learned counsel cannot be accepted are:-
(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.
The judgment of the Supreme Court in Tahil Ram v. Ram Chand (supra) on which learned counsel for the petitioner has heavily relied, does not in any manner help the cause of the petitioner. A careful reading of that judgment shows that appellant Tahil Ram's petition for setting aside of exparte arbitration award came up for hearing before a learned Single Judge of Bombay High Court on March 15, 1974. Shri N.V. Adhia, Advocate, appeared on behalf of the appellant. At the stage of hearing, Shri Adhia made a statement that he had informed the petitioners regarding the date of hearing of the petition. His request for adjournment was refused. Thereafter, Shri Adhia was allowed to withdraw his appearance and the petition was dismissed in default. The application for restoration was dismissed by the learned Single Judge and the appeal filed by the appellant was also dismissed by the Division Bench. Even while expressing its agreement with the view expressed by the learned Single Judge of the Bombay High Court on April 15, 1974 regarding the unethical practices adopted by the parties and counsel, their Lordships of the Supreme Court held that the appellant was not at fault and he should not be made to suffer. The observations made by the Supreme Court in this context are:-
"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 nothing 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 interests of justice required, that a fresh notice for actual date . hearing should have been sent to the parties. In any case in the facts and circumstances of this case we fell that the party in person was not at fault and as such should not be made to suffer."
10. In Kirpal Kaur's case (supra), the learned Single Judge relied on the above quoted observations of the Supreme Court and held:-
"When the Advocate appearing for the petitioner had withdrawn from the case, the interests of justice required that a fresh notice for actual date of hearing should have been sent to the defendant."
Neither of these two decisions on which learned counsel has placed reliance can be read as laying down a general proposition of law that in each case where a counsel appearing for a party pleads no instructions, it is incumbent on the Court or Judicial Tribunal or Quasi Judicial Authority to issue fresh notice to that party. In Tahil Rani's case, their Lordships were greatly influenced by the fact that there was nothing to show that whether the petitioner was aware of the hearing of the case on 15.4.1974. Their Lordships felt that the appellant was not at fault and, therefore, he should not be made to suffer. Similarly, in Kirpal Kaur's case, learned Single Judge observed that in the facts and circumstances of the case, the defendant cannot be treated at fault and as such, her legal representatives should not be made to suffer. It is, therefore, clear that both the decisions turned on their own facts. In both the cases, the Court felt that the appellant/petitioner should not be made to suffer because it was not at fault. However, neither the Apex Court nor the learned Single Judge has laid down law that in all cases where an Advocate withdraws from a case or pleads no instructions, a fresh notice should invariably be given to the defendant. That cannot be taken as the ratio of the decision of the Supreme Court or that of the learned Single Judge in Kirpal Kaur's case.
11. How the Court should determine the ratio of a judgment has been discussed by the Supreme Court in a number of cases.
12. In Krishan Kumar v. Union of India, AIR 1990 SC 1782 an argument was advanced that the decision of the employer to fix a cut-off date for exercise of option by the Provident Fund Contributories to switch over to the pension scheme was liable to be declared as unconstitutional in view of an earlier decision of the Apex Court in D.S. Nakara v. Union of India, AIR 1983 S.C. 130. While distinguishing the decision in Nakara's case, their Lordships observed :-
"The doctrine of precedent, that is being bound by a previous decision, is limited to the decision itself and as to what is necessarily involved in it. It does not mean that this Court is bound by the various reasons given in support of it, especially when they contain "propositions wider than the case itself required." This was what Lord Selborne said in Caledonian Railway Co. v. Walker's Trustees (1892(7) AC 259) and Lord Halsbury in Quinn v. Leathern (1901) AC 495 (502). Sir Frederick Pullock has also said: "Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision."
In other words, the enunciation of the reason or principle upon which a question before a Court has been decided is alone as a precedent. The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involves the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the Court to spell it out with difficulty in order to be bound by it. In the words of Halsbury, 4th Edn., Vol. 26 para 573:
"the concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject-matter of the decision, which alone has the force of law and which when it is clear it is not part of a Tribunal's duty to spell out with difficulty a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of "a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a Tribunal for its judgment, all are taken as forming the ratio decidendi." (Underlining is ours).
13 Similarly, in Commissioner of Income-tax v. M/s. Sun Engineering Works (P) Ltd., AIR 1993 S.C. 47 their Lordships indicated the guidelines as to how a decision of the Supreme Court should be construed and observed: -
"It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in. which it is rendered and while applying the decision to a later case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings."
14. In Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India, AIR 1971 S.C. 530, their Lordships had observed:
"It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."
15. In view of the above exposition of law, we hold that it is not necessary for the Court/Tribunal or other Quasi Judicial Authority to give a fresh notice in all cases where a party is represented by a counsel or a representative at one stage but subsequently such counsel/representative withdraws from the case or pleads no instructions."
16. In so far as the case of the revision petitioner is concerned, we are fully convinced that there was no occasion for the Commissioner to have issued fresh notice to the petitioner on 13.3.1991 or thereafter. Moreover, we find no reason or justification to overlook the abnormal delay in making of the application for setting aside the exparte proceedings. Admittedly, the order was passed by the Commissioner on 9.3.1994 and even though the petitioner was aware of the passing of the order because he had received notices dated 8.4.1994 and 27.5.1994, he did not take steps to file an application immediately thereafter for setting aside of the exparte proceedings and the order.
17. For the reasons mentioned above, the revision petition is dismissed.