Ashok Kumar Dhiman vs Smt. Chandrawati Mehta

A.K. Banerji, J.—This revision by the Defendant-applicant is directed against the order dated 20.1.1994, passed by the Additional District Judge, Hardwar, dismissing the application (3-Ga) of the Defendant-applicant for recalling the ex parte decree dated 23.4.1992.

Brief facts of the case are that the Plaintiff-opp. party filed a suit against the Defendant-applicant for ejectment and recovery of arrears of rent from the disputed shop on the ground that the said Defendant-applicant was a defaulter and had not paid the arrears of rent despite the service of the notice u/s 106 of the Transfer of Properties Act on the said Defendant. The suit was contested by the Defendant-applicant, inter alia, on the ground that the said Defendant was not in arrears of rent and had been paying the same to the landlady who had not issued the rent receipts and subsequently the same was being deposited u/s 30(1) of the U.P. Act No. 13 of 1972 in Court. The suit was decreed ex parte on 23.4.1992 by the court below. An application under Order 9, Rule 13 CPC was filed by the Defendant on 27.4.1992 for recalling the order dated 23.4.1992 and for restoration of the suit. The said application has been dismissed by the impugned order passed by the court below on 20.1.1994 hence the present revision.

I have heard Sri Rajesh Tandon, learned Counsel for the Defendant-appplicant and Sri M. K. Gupta, learned Counsel appearing for the Plaintiff-opp. party. I have also perused the record of the civil revision. Shri Rajesh Tandon has contended that the court Below has rejected the application for recalling the ex parte decree on two grounds namely that compliance of Section 17 of the Small Cause Court Act has not been made and secondly, on the ground that Defendant-applicant has failed to make out sufficient ground for recalling the ex parte order. Learned Counsel has contended that the reason given by the court below for holding non-compliance of Section 17 of the Small Causes Court Act cannot be sustained, in view of the fact that admittedly prior to the date of the hearing of the application under Order 9, Rule 13 CPC the entire amount as required u/s 17 of the said Act had been deposited. So far as this submission is concerned in my view the same Is well founded. On the date when the application under Order 9, Rule 13 CPC was being heard the entire amount was in deposit. The court below had legally erred in holding that compliance of Section 17 of the Act had not been made. To this extent the findings of the court below cannot be upheld.

It was next contended by Sri Tandon that the court below has manifestly erred In holding that the applicant had failed to show sufficient cause for recalling the ex parte decree and the reasons given by the court for rejecting the restoration application cannot be sustained. Elaborating his arguments, the learned Counsel has contended that as the counsel for the Defendant had noted on the order-sheet that he had no instructions, the court below ought to have Issued notice to the Defendant rather than to proceed ex parte and thereafter decreed the suit ex parte. Since the counsel did not inform the Defendant regarding the date fixed In the case, the later had no knowledge about the same. The cause shown by the Defendant therefore, was sufficient for recalling the ex parte decree The learned Counsel in support of his contention has referred to the decision of the Supreme Court In the case of Padam Chand Jain v. XII Addl. District Judge, Agra and Ors. 1993 Supreme Court and Full Bench Rent Cases 419. I have perused the findings given by the court below. It has been held that the Defendant-applicant was present in the court of District Judge on 31.10.1991 and has given no reason why he absented himself and made no effort to find out the progress of the case thereafter. That apart the case was received by the transferee court on 15.11.1991 and notice was given to the, counsel for the Defendant regarding the date 5.2.1992 which was fixed for final hearing On the said date, the counsel for the Defendant noted on the order sheet that he had no instructions. The case was listed on 17.3.1992 on which date the court ordered to proceed ex parte against the Defendant. The case was listed thereafter, on 6.4.1992 and 18.4.1992 before the said court and ultimately the ex parte decree was passed on 23.4.1992. The court below was therefore, of the view that the counsel for the Defendant was aware of the transfer of the case and the date fixed by the court and as the counsel has not sought the permission of the court by filing any application for withdrawing from the case as required under Order 3, Rule 4(2) CPC The said counsel continued to represent the Defendant and It could not be said that the Defendant had no knowledge about the transfer or about the date fixed in the case, therefore, the. Defendant has failed to make out sufficient cause for recalling the ex parte decree.

I have heard the learned Counsel for the parties and have perused the reasons given by the court below in the impugned order. I am of the view that it cannot be said that the Impugned order suffers from any error of law or error of jurisdiction. It was open to the court either to believe the explanation submitted by the Defendant or not to accept the same. This Court cannot sit in appeal over the discretion exercised the court below. That apart from even on merits the reasons given by the court below for holding that the Defendant has failed to make out sufficient cause for recalling ex parte order cannot be said to be either manifestly illegal or perverse. The suit had been filed in the year 1990 and was pending since then. The Defendant had already filed a written statement and he was present in the Court of the District Judge on 31.10.1991. No reasons have been given why the Defendant lost interest in the case thereafter, or why he did not appear before the transferee court. In the application filed by the Defendant under Order 9, Rule 13 CPC which has been annexed as Annexure No. 7 to the affidavit filed in support of the stay application, the ground mentioned by the Defendant-applicant for recalling the ex parte order was that his counsel did not inform him regarding the transfer of the case and the date fixed, thereafter, and it was only on 27.4.1992 when he met his counsel that he came to learn that an order has been passed to proceed ex parte against him and was asked to file an application for recalling the said order when the said application was filed it transpired that the suit had already been decreed on 23.4.92. No mention had been made in this application that the Defendant had withdrawn, Instructions from his counsel Anurag Gupta. Therefore, under the provisions of Order 3, Rule 4(2) CPC the said counsel continued to represent the Defendant. It is noteworthy that the application under Order 9, Rule 13 CPC was signed by the same counsel who was appearing for the Defendant namely Anurag Gupta and the said counsel continued to represent the Defendant even for the purposes of the restoration application. That apart a mere statement made by a counsel that he has no Instructions does not terminate his authority unless he submitted the same In writing and obtained a permission from the Court to withdraw from the case. A Division Bench of our Court in the case of Bijli Cotton Mills (Pvt.) Ltd. Vs. Chhaganmal Bastimal and Others, had held while noticing the provisions of Order 3, Rule 4(2) CPC as follows:

Thus, once an advocate Is engaged as a pleader by a client, the authority of the Advocate to represent his client continues to remain in force until it is determined with the leave of the Court in writing signed by the client or the pleader. In the absence of a written termination of the relationship of the client and the pleader, the pleader is not absolved of his duty to appear on behalf of his client. Any statements made by him that he had no instructions does not terminate his authority. Once he has accepted the brief and the client has paid his fee, he continues to represent the client and be responsible for the, conduct of the case. He is, no doubt, entitled to terminate his status as a pleader of the client but that cannot be done orally. It must be done in writing with the permission of the Court in the manner laid down by Clause (2) of Rule 4 of Order III.

In view of the provisions of Order III, Rule 4(2) Code of Civil Procedure, therefore, even though the counsel for the Defendant had written no instructions on the order sheet, on 5.2.1992 he continued to represent the Defendant as he did not seek any permission In writing from the Court to withdraw from the case and no such permission was granted to him by the Court. I therefore, do not find any substance in the submissions made by Sri Tandon that the Court ought to have Issued notice to the Defendant before proceeding ex parte after 5.2.1992. The reasoning given by the court below, therefore, while dismissing the restoration application does not suffer from any legal or jurisdictional error. So far as the decision of the Supreme Court In the case of Padam Chand Jain (supra) on which reliance has been placed by Sri Tandon, in my opinion the same has no application to the facts of the present case. In that case the High Court had dismissed the writ petition of the Petitioner as the counsel for the Petitioner was absent. The Supreme Court had observed that in the broader interest of justice It would have been better if High Court disposed of the petition on merits after hearing the learned Counsel for the parties. Here the facts are totally different. In the suit pending before the trial Court, the Defendant did not appear and the Court proceeded ex parte and subsequently passed an ex parte decree, the exparte decree could only be recalled if sufficient cause was shown for the non-appearance of the Defendant. The Court below was satisfied that sufficient cause had not been made out by the Defendant for recalling the order and, therefore, dismissed the said application. It cannot be said that the Court below committed any procedural error.

As a result, I do not find any merits in this revision and the same is dismissed but in the facts and circumstances of the case, the parties shall bear their own costs of this revision.