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Full Case Details
B.P. JEEVAN REDDY, J. – 2. The appeal is preferred by the plaintiff against the judgment and
order of a Division Bench of the Calcutta High Court allowing the appeal preferred by the
respondent/defendant. The appeal before the High Court was directed against an order of the city
civil court, Calcutta dismissing an application filed by the defendant to set aside the ex parte decree
passed against him, under Order 9 Rule 13 of the Civil Procedure Code. The relevant facts may be
noticed briefly.
- The plaintiff/appellant filed a suit for ejecting the defendant-tenant on the ground of default
in paying rent and also on the ground that the such premises are required for his own use and
occupation. The suit was posted for final hearing on June 9, 1988 – seven years after its institution.
On an earlier occasion, the defendant had filed two interlocutory applications, one under Order 14
Rule 5 and the other under Order 6 Rule 16 CPC. On May 19, 1988 the city civil court had passed
an order on the said applications observing that the said applications shall be considered at the final
hearing of the suit. According to the defendant (as per his statement made in the application filed by
him for setting aside the ex parte decree) his advocate advised him that he need not be present at the
hearing of the suit on June 9, 1988, and thereafter till the applications filed by him under Order 14
Rule 5 and Order 6 Rule 16 CPC are disposed of. Be that as it may, on June 9, 1988, the advocate
for the defendant prayed for an adjournment till the next day. It was adjourned accordingly. On June
10, neither the advocate for the defendant nor the defendant appeared, with the result the defendant
was set ex parte. Hearing of the suit was commenced and concluded on June 11, 1988. The suit was
posted for delivery of judgment to June 13, 1988. On June 11, 1988, an application was made on
behalf of the defendant stating the circumstances in which his advocate had to retire from the case.
This application, however, contained no prayer whatsoever. The suit was decreed ex parte on June
13, 1988. Thereafter the defendant filed the application to set aside the ex parte decree. In this
application he referred to the fact of his filing two interlocutory applications as aforesaid, the order
of the court thereon passed on May 19, 1988 and then stated “due to the advice of the learned
advocate-on-record that your petitioner need not be present at the hearing of the suit on June 9,
1988 and thereafter till the disposal of the application filed under Order 6 Rule 16 and Order 14
Rule 5 read with Section 151 of the Code of Civil Procedure in the above suit,” the defendant did
not appear before the Court. It was stated that Mr Ravindran the Principal Officer of the defendantcompany was out of town on that date. It was submitted that because the defendant had acted on the
basis of the advice given by the advocate-on-record of the defendant, there was sufficient cause to
set aside the ex parte decree within the meaning of Order 9 Rule 13 CPC. The trial court dismissed
the said application against which an appeal was preferred by the defendant to the Calcutta High
Court. The appeal was heard by a Division Bench and judgment pronounced in open court on July
8, 1991 dismissing the appeal. However, it appears, before the judgment was signed by the learned
judges constituting the Division Bench, an application was moved by the defendant for alteration or
modification and/or reconsideration of the said judgment mainly on the ground that the defendants’
counsel could not bring to the notice of the Division Bench the decision of this Court in Rafiq v.
Munshilal[AIR 1981 SC 1400] and that the said decision clearly supports the defendants’ case. The
counsel for the plaintiff opposed the said request. He submitted that once the judgment was
pronounced in open court, it was final and that matter cannot be reopened just because a relevant
decision was not brought to the notice of the Court. After hearing the counsel for both the parties,
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the Division Bench reopened the appeal on the ground that “technicalities should not be allowed to
stand in the way of doing justice to the parties”. The Bench observed that when they disposed of the
appeal, their attention was not invited to the decision of this Court in Rafiq v. Munshilal and that in
view of the said judgment they were inclined to reopen the matter. The Division Bench was of the
opinion that “after a judgment is delivered by the High Court ignoring the decision of the Supreme
Court or in disobedience of a clear judgment of the Supreme Court, it would be treated as non-est
and absolutely without jurisdiction …. when our attention has been drawn that our judgment is per
incuriam, it is our duty to apply this decision and to hold that our judgment was wrong and liable to
be recalled”. (We express no opinion on the correctness of the above premise since it is not put in
issue in this appeal.) Accordingly, the Division Bench heard the counsel for the parties and by its
judgment and order dated March 3, 1992 allowed the appeal mainly relying upon the decision of
this Court in Rafiq. - Since the judgment under appeal is exclusively based upon the decision of this Court in Rafiq
it is necessary to ascertain what precisely does the said decision say. The appellant, Rafiq had
preferred a second appeal in the Allahabad High Court through an advocate. His advocate was not
present when the second appeal was taken up for hearing with the result it was dismissed for
default. The appellant then moved an application to set aside the order of dismissal for default
which was dismissed by the High Court. The correctness of the said order was questioned in this
Court. The matter came up before a Bench comprising D.A. Desai and Baharul Islam, JJ. D.A.
Desai, J. speaking for the Bench observed thus:
The disturbing feature of the case is that under our present adversary legal system
where the parties generally appear through their advocates, the obligation of the parties is
to select his advocate, brief him, pay the fees demanded by him and then trust the learned
Advocate to do the rest of the things. The party may be a villager or may belong to a rural
area and may have no knowledge of the court’s procedure. After engaging a lawyer, the
party may remain supremely confident that the lawyer will look after his interest. At the
time of the hearing of the appeal, the personal appearance of the party is not only not
required but hardly useful. Therefore, the party having done everything in his power to
effectively participate in the proceedings can rest assured that he has neither to go to the
High Court to inquire as to what is happening in the High Court with regard to his appeal
nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is
listed. It is no part of his job. - It was then argued by the counsel for the respondent in that appeal that a practice has grown
up in the High Court of Allahabad among the lawyers to remain absent when they did not like a
particular Bench and that the absence of the appellant’s advocate in the High Court was in
accordance with the said practice, which should not be encouraged. While expressing no opinion
upon the existence or justification of such practice, the learned Judge observed that if the dismissal
order is not set aside “the only one who would suffer would not be the lawyer who did not appear
but the party whose interest he represented,” and then made the following further observations:
The problem that agitates us is whether it is proper that the party should suffer for the
inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the
negative. Maybe that the learned advocate absented himself deliberately or intentionally.
We have no material for ascertaining that aspect of the matter. We say nothing more on that
aspect of the matter. However, we cannot be a party to an innocent party suffering injustice
merely because his chosen advocate defaulted.
250 - The question is whether the principle of the said decision comes to the rescue of the
defendant respondent herein. Firstly, in the case before us it was not an appeal preferred by an
outstation litigant but a suit which was posted for final hearing seven years after the institution of
the suit. The defendant is a private limited company having its registered office at Calcutta itself.
The persons in charge of the defendant-company are not rustic villagers nor they are innocent
illiterates unaware of court procedures. Prior to the suit coming up for final hearing on June 9, 1988
the defendant had filed two applications whereupon the court ordered that they will be considered at
the time of the final hearing of the suit. The plaintiff’s case no doubt is that the said applications
were part of delaying tactics being adopted by the defendant-tenants with a view to protract the suit.
Be that as it may, the defendant thereafter refused to appear before the court. According to the
defendant, their advocate advised them that until the interlocutory applications filed by them are
disposed of, the defendant need not appear before the court which means that the defendants need
not appear at the final hearing of the suit. It may be remembered that the court proposed to consider
the said interlocutory applications at the final hearing of the suit. It is difficult to believe that the
defendants implicitly believed their advocate’s advice. Being educated businessmen they would
have known that non-participation at the final hearing of the suit would necessarily result in an
adverse decision. Indeed we are not prepared to believe that such an advice was in fact tendered by
the advocate. No advocate worth his salt would give such advice to his client. Secondly, the several
contradictions in his deposition which are pointed out by the Division Bench in the impugned order
go to show that the whole story is a later fabrication. The following are the observations made in
the judgment of the Division Bench with respect to the conduct of the said advocate: “We found
that the said learned advocate conducted the proceedings in a most improper manner and that his
absence on June 10, 1988 and on subsequent date was not only discourteous but possibly a
dereliction of duty to his client … the learned advocate had forgotten his professional duty in not
making inquiry to the court as to what happened on June 10, 11 and 13, 1988 … the learned
advocate acted in a most perfunctory manner in the matter and the learned advocate dealt with the
matter in a most unusual manner. We have also found that the said learned advocate had made
serious contradiction in the deposition before the court below. The learned advocate in his
deposition stated that he did not file an application for adjournment on June 9, 1988. But from the
record it was evident that it was on the basis of the application filed on June 9, 1988, the case was
adjourned for cross-examination of the witnesses whose examination was called on the next date.”
The above facts stated in the deposition of the advocate show that he indeed made an application for
adjournment on June 9, 1988 to enable him to cross-examine the witnesses on the next date.
Therefore, his present stand that he advised his client not to participate in the trial from and
including June 9, 1988 onwards is evidently untrue. We are, therefore, of the opinion that the story
set up by the defendant in his application under Order 9 Rule 13 is an after-thought and ought not to
have been accepted by the Division Bench in its order dated March 3, 1992 – more particularly
when it had rejected the very case in its earlier judgment dated July 8, 1991. - The advocate is the agent of the party. His acts and statements, made within the limits of
authority given to him, are the acts and statements of the principal i.e. the party who engaged him. It
is true that in certain situations, the court may, in the interest of justice, set aside a dismissal order
or an ex parte decree notwithstanding the negligence and/or misdemeanour of the advocate where it
finds that the client was an innocent litigant but there is no such absolute rule that a party can
disown its advocate at any time and seek relief. No such absolute immunity can be recognised. Such
an absolute rule would make the working of the system extremely difficult. The observations made
in Rafiqmust be understood in the facts and circumstances of that case and cannot be understood as
an absolute proposition. As we have mentioned hereinabove, this was an on-going suit posted for
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final hearing after a lapse of seven years of its institution. It was not a second appeal filed by a
villager residing away from the city, where the court is located. The defendant is also not a rustic
ignorant villager but a private limited company with its head-office at Calcutta itself and managed
by educated businessmen who know where their interest lies. It is evident that when their
applications were not disposed of before taking up the suit for final hearing they felt piqued and
refused to appear before the court. Maybe, it was part of their delaying tactics as alleged by the
plaintiff. May be not. But one thing is clear – they chose to non-cooperate with the court. Having
adopted such a stand towards the court, the defendant has no right to ask its indulgence. Putting the
entire blame upon the advocate and trying to make it out as if they were totally unaware of the
nature or significance of the proceedings is a theory which cannot be accepted and ought not to
have been accepted. - For the above reasons, the appeal is allowed.
