Punjab-Haryana High Court
Kirpal Kaur And Ors. vs Kulwant Kaur And Ors. on 25 August, 1993
Equivalent citations: (1993)104PLR689
JUDGMENT S.K. Jain, J.
1. One Sucha Singh was murdered. Didar Singh and Kulwant Singh were arrested, challaned, charged and tried under Section 302 of the Indian Penal Code for the said murder. The learned Sessions Judge, Jalandhar acquitted Kulwant Singh but convicted and sentenced Didar Singh vide his judgment and order dated 27.10.1977. On appeal this Court acquitted Didar Singh also. The widow of Sucha Singh and others filed civil suit against Didar Singh claiming compensation for the murder of Sucha Singh. Mr. B. S. Cheema, Advocate was defending the suit on behalf of the defendant Didar Singh. On 26.7.1980, the said Advocate pleaded no instructions and, therefore, vide his judgment and decree dated 27.8.1980, Sub Judge 1st Class, Nawashahar, decreed the suit for recovery of Rs. 67,200/- ex parte. On 15 6 1982, the defendants filed an application for setting aside the ex parte decree which was dismissed on 6.9 1984. Appeal against that order failed on 26.7.1985. That order was challenged in Civil Revision No. 2424 of 1985 which was dismissed in limine on 24.10.1985 by this Court. Special Leave Petition No. 852 of 1991 was filed against that order. The Supreme Court remanded the case back to this Court for disposal by passing a speaking order. This is how this revision petition has coma before me for hearing.
2. Learned counsel for the petitioner has taken me through the statement of Mr. B. S. Cheema, Advocate who was examined during the hearing of the application for setting aside ex parte decree as RW 1 on behalf of the plaintiffs-respondents He has stated that he was engaged by the defendants to defend the suit and he continued appealing upto 26.7.1980 when he pleaded no instructions. The suit was decreed ex parte against the defendants.
3. Sole argument advanced by the learned counsel for the petitioners is that in this case when the counsel for Didar Singh defendant had pleaded no instructions, it was the duty of the Court to issue notice to the defendant. In support of this argument he has relied upon the ratio laid down in Tahil Ram Issardas Sadarangani v. Ram Chand Issardas Sadarangani, A. I. R. 1993 S.C. 1182.
4. Learned counsel for the respondent submits :-
(i) that immediately after the ex parte decree was passed on 27.8.1980, limitation had started running against Didar Singh but be did not choose to file an application for setting aside the ex parte decree for a long period of 1 1/2 years, during his life time. Therefore, the application for setting aside ex parte filed by his legal representatives who had stepped into his shoes was hopelessly time barred ;
(ii) that in the Courts below, the case of the appellants herein was that Didar Singh had not authorized Mr. B. S. Cheema, Advocate to defend the suit and, therefore, his statement, pleading no instructions, was not binding on Didar Singh and that plea was answered in negative by the learned trial Court and his finding was affirmed by the learned first appellate Court and now in this revision petition, the appellants could now be allowed to take all together a new point for the first time to the effect that where the counsel for a party pleads no instructions, it is duty of the Court to issue notice to the party concerned.
5. I have given a thoughtful consideration to the rival arguments. It is true that normally a party is not allowed to take all together a new plea for the first time in the High Court but it is now well settled that a legal plea can certainly be taken at the Supreme Court stage.
6. The question as to whether the Court is bound to issue notice to a party whose counsel pleads no instructions or not is purely a question of law and certainly be raised for the first time at the High Court level.
7. Now on the question as to whether the ex parte decree passed on the basis of the statement of the learned counsel for the defendants pleading no instructions, was sustainable or not.
8. The lower appellate Court has rightly recorded that there is no evidence on record to show that Didar Singh during his life time had any notice of the factum of the ex parte decree having been passed against him. Admittedly, the ex parte decree had been passed on the basis of the statement of the learned counsel for the defendants having pleaded no instructions, Mr. Cheema, when appeared, as RW-1 had not stated that he had informed Didar Singh. It is not disputed in the present case that on 26.7.1980 when Mr. B. S. Cheema, Advocate withdrew from the case, Didar Singh was not present in the Court. There is nothing on the record to show that Didar Singh had the notice of hearing of the case on that day. 1 am, therefore, of the view that when Mr. B. S. Cheema, Advocate withdrew from the case, the interest of justice required that a fresh notice for actual date of hearing should have been sent to the defendant, Didar Singh. In holding this view I find support from the ratio laid down in Tehil Ram Issardas's case (supra). In any case, in the facts and circumstances of the case, I feel that the defendant Didar Singh was not at fault and as such his legal representative should not be made to suffer.
9. In the above view of the matter, the impugned order cannot be said to be correct, proper, regular and legal. Therefore, ex parte decree dated 27.8.1980 passed by Sub Judge 1st Class, Nawasbahr, his order dated 6.9.1984 thereby dismissing the application of the defendant for setting aside ex parte decree and the impugned order dated 26.7.1985 vide which the appeal of the defendant against the order of the Sub Judge 1st Class, Nawashahar dated 6.9.1984 was dismissed, are set aside. The case is remanded back to learned Sub Judge 1st Class, Nawashahar for fresh trial from the stage where it stood on 26.7.1980 when Shri B. S. Cheema, learned counsel for the defendant had pleaded no instructions.
10. Parties through their counsel are directed to appear in the Court of Sub Judge 1st Class, Nawashahar on 14.9.1993. Revision allowed.