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2. A suit was filed by the first respondent herein against one Sasidharan Nair. The defendant Sasidharan Nair filed written statement on 22-8-1997. The suit is one for recovery of money on the strength of a dishonoured cheque, allegedly issued by the original defendant, Sasidharan Nair. It is seen that, prior to the institution of the suit, a lawyer notice was sent, which was received by the defendant, but, not replied. In the suit, the defendant admitted the signature, but disputed the execution. According to him, he had availed a loan of Rs. 10,000/- alone for meeting his medical expenses. He further stated that the amounts were paid in part by him. After framing issues, the above suit was listed for trial to 9-2-1998. On a petition filed by the defendant, it was removed from the list. Thereafter, there were several postings. Again, the case came up for trial in the list on 14-9-1998 and the defendant got an adjournment stating that the matter will be settled by him. The case was adjourned to 18.9.1998 for filing compromise. Thereafter, it was adjourned to 25-9-1998 and again to 28.9.1998. On 28.9.1998, counsel appearing for the defendant reported no instructions and the defendant was set ex parte as he was not present. Thereafter, an ex parte decree was passed on 29-9-1998. The defendant did not file any petition to set aside the ex parte decree. After about four months, the defendant died on 22-1-1999. Thereafter, wife of the defendant, late Sasidharan Nair and two children filed an application for setting aside the ex parte decree along with a petition to condone the delay on 20-7-1999 and those petitions were returned as impleading petition was not filed. Thereafter, impleading petition was filed to implead the legal heirs as additional defendants and the petitions were re-presented. Those applications were dismissed as defendant died only on 22-1-1999 and he had sufficient time to file a petition to set aside the ex parte decree during his life time. It also found that no valid reasons were stated to condone the delay in setting aside the ex parte decree. In the above petition for setting aside the ex parte decree filed by the wife and two children of the defendant, writ petitioner was arrayed as second respondent. It is stated that since he was residing at Bombay, he did not join the earlier petitions. However, notice was issued and he was aware of the proceedings. After dismissal of the above petition filed by the wife and two children of the defendant to set aside the ex parte decree by Ext.P1 order dated 26-10-1999, writ petitioner filed an appeal against the above said order. The defendant's wife and other children who approached the court for setting aside the ex parte order did not challenge the order dismissing the petition. The Civil Miscellaneous Appeal was filed against Ext.P1 order by the petitioner who was one of the sons of the late defendants and who was respondent in Ext.P1 proceedings with a delay condonation petition after a long period of one year and four months. Appeal was filed by the petitioner on a certified copy of the order obtained by the counsel for the respondent 2 to 4 in the appeal. (His mother, brother and daughter who applied for setting aside the ex parte decree).

Even if decree is passed, he can apply to the court under Rule 13 for setting aside the ex parte decree if he is able to show that the summons was not duly served or he was prevented by any sufficient cause from appearing when the suit was called on for hearing. Rule 13 reads as follows:

13. Setting aside decree ex parte against defendant: -- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

6. It is true that a person who stepped into the shoes of the defendants can avail the remedy under Order IX Rule 13 as held by the Apex Court in Raj Kumar v. Sardari Lal and Ors. 2004 AIR SCW 470 at page 475. But, that does not mean that a legal representative of the deceased, one after another can file petitions to set aside ex parte order without explaining delay or without showing sufficient cause for non-appearance of the defendant on the date of posting. In Jayalakshmi's case (supra), Division Bench of this Court did not prescribe a mandatory rule that whenever advocate submits no instructions, the court should issue notice. The court was also not making any statutory rule like Order IX Rule 6. The court only observed that on the facts of that case, dismissal of the suit without issuing a registered notice to the party was not justified. In that case, the court was satisfied that the party was not informed about the action taken by the counsel and in the application for setting aside the decree and delay condonation application were allowed as sufficient reason to condone the delay in filing the application to set aside the ex parte decree was shown by the defendants. The court relied on mainly the decision in Malkiat Singh and Anr. v. Joginder Singh and Ors. . In that case, appellants were tried for the murder of one Harpal Singh and they were convicted and sentenced to undergo imprisonment for life by the Sessions Court. Respondent filed a suit in the court of Sub Judge for Rs. One lakh for deprivation of the income to the family members which they used to get from the deceased Harpal Singh. The claim was contested by the appellants. They filed written statement and engaged a counsel. Two witnesses were examined and cross-examined. Thereafter, counsel for the appellant submitted that he has no instructions and ex parte decree was consequently passed. The court observed that on the facts of the case, appellants were neither careless nor negligent as their counsel did not inform them the date of posting and further noticed that after counsel reported no instructions, the court did not issue fresh notice and, therefore, they have got a sufficient cause on the facts of the case to set aside the ex parte decree. The ex parte decree was set aside as sufficient reasons for their absence was established as provided under Order IX Rule 13. In Tahil Ram Issardas Sadarangani and Ors. v. Ramchand Issardas Sadarangani and Anr. 1993 Suppl (3) SCC 256, the court found that the advocate withdrew the appearance after filing vakalath and there was nothing to show that the petitioner had notice of the date of hearing. The court observed that application for restoration was dismissed on the ground that it is not proper for the advocate to report no instructions without informing him. It was found that defendants were not aware of the postings and on the facts and circumstances of that case, the suit was restored as ingredients of Order IX Rule 13 CPC are established.

Courts cannot prescribe procedural rules of universal application like legislature or rule making authority as held in Ramachandra Rao v. State of Karnataka 2002 (2) KLT 189 SC. We also refer to the Division Bench decisions of this Court in Shaji v. State of Kerala and Martin v. State of Kerala .

8. It is for the parties who want to set aside the ex parte decree to satisfy the court the conditions made under Order IX Rule 13 are established and there are sufficient reasons for non-appearance of the defendants as held in Radha Mohan Datt, Silk Merchant v. Abbas Ali Biswas and Ors. AIR 1931 All. 294 FB at 296 and Rajni Kumar v. Suresh Kumar Malhotra and Anr. , in this case, there is no averment that counsel did not inform the defendant regarding the submission of 'no instructions' or date of postings. The Apex Court in G.RSrivastava v. R.K.Raizada and Ors. held that unless 'sufficient case' is shown for non-appearance of the defendant in the case on the date of hearing, the Court has no power to set aside an ex parte decree. But, the words "was prevented by any sufficient cause from appearing" must be liberally construed to enable the Court to do complete justice between the parties particularly when no negligence or inaction is imputable to erring party. Normally, the court must assume and presume that the report of 'no instruction' is being made by counsel after sufficiently notifying the party for whom he appears. There may be an exceptional case where the party may be able to show successfully that for no fault of his, such report of 'no instruction' was made by his counsel. The members of the noble profession of law must be assumed to act nobly and with consciousness of their professional responsibility. Therefore, we hold that when an advocate submits 'no instructions' normally, it is for the court to enquire with the advocate whether he had informed the party about the posting or to ascertain whether the party was aware of the date and in appropriate cases the court can order fresh notice or when petition to set aside the ex parte order comes, if there are sufficient reasons, ex parte order can be set aside and even a lenient view also can be taken. But, there is no rule that in all cases merely because fresh notice was not issued when counsel reported 'no instructions' ex parte decree should be set aside. But, as observed in the reference order: