Vs. T.M. and M.C. Private Ltd.  INSC 68 (5 February 1993)
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Reddy, K. Jayachandra (J)
1993 SCR (1) 794 1993 SCC (2) 185 JT 1993 (4) 528 1993 SCALE (1)451
of Civil Procedure, 1908:
9, Rule 13-Setting aside ex-parte decree against defendant-Cause for
non-appearance-Improper advice of advocate-Whether a sufficient cause-Held:
Cannot as a rule be accepted-party cannot disown its advocate and seek relief.
suit flied by the appellant for ejecting the respondents limited company, from
the suit premises, was decreed ex- parte by the trial court since neither the
advocate nor the respondent-tenant, appeared when the case came up for final-
hearing. Thereafter, the respondent-company flied an application to set aside
the ex-parte decree, stating that the non-appearance of the respondent-tenant
was due to the advice tendered by the advocate-on-record to the effect that the
respondent-tenant need not be present at the hearing of the suit till the
disposal of the two interlocutory applications filed by the respondent-tenant
According to it, there was sufficient cause to set aside the ex-parte decree
within the meaning of Order 9 Rule 13 C.P.C. The trial court dismissed the said
application. The appeal against the trial court's order was also dismissed by a
Division Bench of the High Court. However, before the judgment was signed by
the learned Judges, an application was moved by the respondent-tenant for
alteration or modification and/or reconsideration of the judgment on the ground
that the respondents' counsel could not bring to the notice of the Court, the
decision of the Supreme Court in the case of Rafiq and Anr. v. Munshilal and Anr.,
AIR 1981 SC 1400 which supported respondent-tenant's case. This was opposed by
the appellant on the ground that once the judgment was pronounced in open
court, it was final and that matter could not be reopened, just because a
relevant decision was not brought to the notice of the court. However, the
Division Bench reopened the case on the ground that technicalities should not
be allowed to stand in the way of doing justice to the parties and allowed the
appeal, 794 795 relying on the decision.
appeal before this Court on behalf of the appellant It was contended that the
decision in the case of Rafiq did not support the respondents' case and the
High Court had erred in holding otherwise, Inasmuch as the respondent- tenant
in the Instant case was a private limited company, managed by persons who were
not only well-educated but were practical businessmen, unlike the appellant In
the case of Rafiq, who was a rustic innocent villager, placing his entire trust
In his advocate.
behalf of the respondent-tenant it was submitted that when the High Court had
applied and acted upon a decision of this Court, it would not be proper to set
aside their order under Article 136 of the Constitution, and that the
respondent-company implicitly trusted their advocate and acted according to his
advice and should not be penalised therefore.
the appeal, this Court,
1.1. 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 side 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. [801G] 1.2. The
instant case was an on-going suit posted for final hearing after a lapse of
seven years of its institution. It was not a second appeal riled by a villager
residing away from the city, where the Court is located. The respondent is also
not a justice ignorant villager but a private limited company with its
head-office at the place where the court is located and managed by educated
businessmen who know where their interest lies. It is evident that when their
interlocutory applications were not disposed of before taking up the suit for
final hearing, they felt piqued and refused to appear before the court. May be,
it was part of their delaying tactics as alleged by the appellant. May be not.
But one thing is clear they chose to non-cooperate with the court. Having
adopted such a stand towards the 796 Court, the respondent has no right to ask
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. [802A-C] 1.3. It
is difficult. to believe that the respondents 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. This Court is not prepared to believe that such an advice
was in fact tendered by the advocate.
advocate worth his salt would give such advice to his client. Secondly, there
are several contradictions in his deposition. Therefore, the story set up by
the respondent- company in its application under Order 9 Rule 13 is an
after-thought and ought not to have been accepted by the Division Bench, more
particularly, when it had rejected the very case in its earlier judgment
[800G-H, 801AE] Rafiq and Anr. v. Munshilal and Anr., A.I.R. 1981 S.C. 1400,
APPELLATE JURISDICTION : Civil Appeal No. 429 of 1993.
the Judgment and Order dated 3.3.92 of the Calcutta High Court in A.O.O. No.
1036 of 1990.
and H.K. Puri for the Appellant.
Anil Agrawala and L.P. Agrawala for the Respondents.
Judgment of the Court was delivered by B.P. JEEVAN REDDY, J. Heard the counsel
for the parties.
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.
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.
earlier occasion, the defendant had filed two interlocutory applications, one
under Order 14 rule 5 and the other under Order 6 rule 16 C.P.C. On 19th May, 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 9.6.1988, and thereafter till
the applications filed by him under Order 14 rule 5 and Order 6 rule 16 C.P.C.
are disposed of Be that as it may, on 9th June, 1988, the advocate for the
defendant prayed for an adjournment till the next day. It was adjourned
accordingly. On 10th June, neither the advocate for the defendant nor the
defendant appeared, with the result the defendant was set ex-parte. Hearing of
the suit was com- menced and concluded on 11th June, 1988. The suit was posted
for delivery of judgment to 13th June, 1988. On 11th June, 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 13th June, 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 inter- locutory
applications aforesaid, the order of the court thereon passed on 19th May, 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 9.6.1988 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 defendant Company 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 C.P.C.
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 798 Division Bench and judgment pronounced in open court on 8.7.1991
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 reconsidera- tion 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 and
another v. Munshilal and another, AIR 1981 SC 1400 and that the said decision
clearly supports the defendants, case.
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, 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 nonest 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 3rd March, 1992 allowed the appeal mainly
relying upon the decision of this Court in Rafiq.
this appeal Shri Ganguli, learned counsel for the appellant/plaintiff submitted
that the decision in Rafiq does not support the defendant's case and that the
Calcutta High Court has erred in holding otherwise. It is submitted that the
defendant in this case is a private limited company, managed by persons who are
not only well-educated but are practical businessmen unlike the appellant in Rafiq
who was a rustic innocent villager placing his entire trust in his advocate. On
the other hand, Shri Santosh Hegde, the learned counsel for the
defendant/respondent submitted that when the High Court has applied and acted
upon a decision of this Court, it would not be proper to set aside their order
under Article 799 136 of the Constitution. He submitted that the
defendant/company implicitly trusted their advocate and acted according to his
advice and should not be penalised therefore.
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.
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:
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 watch-dog 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.
800 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
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. May be 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.
we cannot be a party to an innocent party suffering injustice merely because
his chosen advocate defaulted." The question is whether the principle of
the said decision comes to the rescue of the defendant respondent herein.
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 incharge 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 9th June, 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.
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 801 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 10th June, 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 10th, 11th and
13th June, 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
9th June, 1988. But from the record it was evident that it was on the basis of
the application filed on 9th June, 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 the 9th June, 1988 to enable
him to cross examine the witnesses on the next date.
his present stand that he advised his client not to participate in the trial
from and including 9th June, 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 3rd March, 1992 more
particular when it had rejected the very case in its earlier Judgment dated
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 a side 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 not such abso
lute 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 Rafiq must
be understood in 802 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 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
evident that when their applications were not disposed of before taking up the
suit for final hewing they felt piqued and refused to appear before the court.
May be, 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
the above reasons, the appeal is allowed. The order of the Division Bench of
the Calcutta_High Court dated 33.1992 is set aside and its order dated 8.7.1991
is restored. The company-defendant shall bear the costs of the appellant in this
appeal which are assessed at Rs. 5,000.