Jangir Kaur vs Mukhtiar Singh and Others

Rakesh Kumar Jain, J.

The appellant filed the suit for declaration and joint possession. Her suit was dismissed on 28.07.2003. She preferred first appeal through Shri P.L. Bansal, Advocate who pleaded no instructions on 24.11.2004 as a result thereof her appeal was dismissed for want of prosecution. The order dated 24.11.2004 read as under:-

"Present: Sh. P.L. Bansal, Adv. for the Appellant.

Sh. R.S. Mehal, Adv. and Sh. L.K. Singla, Adv. for the Respondent.

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The appeal was listed for arguments but it has not been argued by Ld. Counsel for the appellant who has made a statement pleading no instructions to proceed. In view of the statement made by Ld. Counsel for the appellant, the appeal is ordered to be dismissed, for want of prosecution. Lower Court file be sent back immediately and appeal file be consigned to the record room."

The appellant was not aware of the proceedings dated 24.11.2004 as neither her advocate Shri P.L. Bansal intimated her that he would not be appearing on her behalf on that date nor the lower Appellate Court had served any notice to her about the fact that her advocate had withdrawn himself from the appeal. She came to know about the order dated 24.11.2004 a day prior to the filing of the application under Order 41 Rule 19 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") for re-admission and hearing of the appeal on merits. It is averred in the application that advocate Shri P.L. Bansal, appearing on behalf of the appellant, had assured her that he would inform the appellant about the fate of the appeal and her presence was not required. She is an illiterate old lady of 72 years of age.

Reply to the application was filed by the respondents in which it was admitted that the appellant had engaged Shri P.L. Bansal, Advocate to conduct her case and that the appellant had never appeared on any date during the pendency of the appeal.

On the pleadings of the parties, three issues were framed. The appellant had examined AW1 Pritam Singh, a 70 years old medical practitioner who had testified that the appellant is a patient and remains usually ill on account of her old age related medical infirmities. The issue before the Court was as to whether it was required to serve a notice upon the appellant when her advocate had pleaded no instructions and withdrawn from the appeal.

The learned Court below, while relying upon a Division Bench judgment of this Court in the case of Suresh Kumar Vs. Smt. Daryai and Others, and a single bench judgment of this Court in the case of Lachman Dass v. Food Corporation of India, (2007-2)146 P.L.R. 390, dismissed the application of the appellant.

It is submitted on behalf of the appellant that she is an illiterate old lady of 72 years of age, suffering from various ailments, engaged an advocate in her appeal in which he had pleaded no instructions at the stage of arguments. It is also submitted that the advocate never informed the appellant about his decision to withdraw from the appeal nor any notice was served upon her by the Court by the advocate. It is submitted that in such circumstances, it was not only incumbent upon the advocate to have served a notice upon the appellant about his decision that he would not be appearing in her appeal but also it was for the Court to issue a notice to the appellant so that she could have made her alternative arrangement. As a rustic villager, the appellant could not have appeared in person and argued the case involving legal technicalities. In support of his submissions, counsel for the appellant has relied upon the following judgments:-

Malkiat Singh and Another Vs. Joginder Singh and Others, ;

Tahil Ram Issardas Sadarangani and others Vs. Ramchand Issardas Sadarangani and another, ;

A.A. Enterprises Vs. Er. J.S. Sekhon, Purchase Officer-V, PSEB and Another, ;

Gulabo Vs. Nagar Palika, Phalodi and Others--> ;

Surinder Kumar v. Ram Nath, 2001(3) R.C.R. (Civil) 315; and

Baljit Singh v. Maya Ram and others, 2006(4) R.C.R. (Civil) 415.

On the other hand, counsel for the respondents has argued that there is no provision in the CPC obliging the Court to serve a notice upon the party in case the advocate appearing on his behalf pleads no instructions. In support of his submissions, he has relied upon the following judgments:-

Suresh Kumar Vs. Smt. Daryai and Others, ;

Lachman Dass v. Food Corporation of India, (2007-2)146 P.L.R. 390; and

Kulwant Kaur v. Shisha Singh, 2010(2) R.C.R. (Civil) 123.

I have heard learned counsel for the parties and examined the record with their able assistance. I would first deal with the judgments relied upon by counsel for the respondents.

In Suresh Kumar''s case (supra), the question before the Division Bench was as to whether it is imperative for the Court in all cases to give a fresh notice to the defendant where the Advocate appearing for the defendant withdraws from the case or pleads no instructions.

In brief, the facts of this case are that one Smt. Daryai widow of Devi Sahai filed an application under the Workmen''s Compensation Act, 1923. Suresh Kumar, who was respondent No. 2 before the Workmen''s Compensation Commissioner, was initially represented by Shri P.R. Yadav, Advocate. However, he did not file any written statement and subsequently neither he nor his advocate appeared to contest the case. He was proceeded against ex parte and the award was announced by the Workmen''s Compensation Commissioner. After six months of the passing of the order, an application was filed by Suresh Kumar for setting aside the ex parte order on the ground that though he had appointed Shri P.R. Yadav, Advocate, but he made a statement that he had no instructions, therefore, it was necessary for the Court to have sent a notice to him. The said application was dismissed by the Workmen''s Compensation Commissioner on the ground that it was filed after the period of limitation and there was no ground for setting aside the ex parte order. It was found by this Court that Shri P.R. Yadav, Advocate, was representing another respondent Kartar Singh and it was observed that "it appears that the petitioner did not fulfil his obligation qua Shri P.R. Yadav and, therefore, on 13.03.1991 Shri P.R. Yadav made a statement that he had no instructions from his client". The Division Bench observed that the plea of the petitioner that he should have been given a fresh notice after his counsel had pleaded no instructions cannot be accepted because merely by engaging a counsel, the petitioner did not get an immunity from prosecuting his case by appearing in the Court and it was for the petitioner to have looked after his interest in the case by personal appearance or by ensuring the appearance of his duly instructed counsel. If a party engages a counsel without giving full instructions to him and suffers an adverse order because the counsel pleads no instructions, then the blame squarely lies on that party and such party cannot plead that it was prevented from appearing in the Court due to sufficient cause. Some other reasons were also given by the Division Bench that there is no provision in the CPC for giving a fresh notice to the party which is already represented by an Advocate or Pleader who had pleaded no instructions on a particular day; there is no provisions in the CPC as to who would bear the expenses for issuance of fresh notice to such party or defendant; the practice of giving fresh notice would not only delay the proceedings of the suits and other cases but will encourage unscrupulous defendants to take advantage of this requirement by engaging successive counsel and then make them to withdraw from the case on the ground of lack of instructions or making them to plead no instructions and if the notices are to be issued every time, then perhaps the case may never come to an end and such a practice would add to the mounting arrears of cases and would completely frustrate the object of expeditious disposal of the disputes by the Courts or Tribunals.

In Lachman Dass''s case (supra), the revision petition was filed against the order of the Courts below, dismissing the application for setting aside the ex parte decree. It was a suit for recovery in which defendant had appeared through his advocate after filing power of attorney. The written statement was not filed despite imposition of costs, rather a statement was made by the counsel that he had no instructions. Since the defendant himself was not present at that time, therefore, he was proceeded against ex parte and the ex parte decree was ultimately followed. In this case also, the Court decided the question as to whether in case where no instructions are pleaded by the Advocate, the Court was obliged to issue notice to the party. It was observed by the Single Bench of this Court that "the pleading of no instructions at a stage when the defendant was to file written statement cannot be a ground for setting aside of ex parte decree after more than four years". The Court was of the view that it is not for the advocate to run after the party for the preparation of written statement and ultimately, while relying upon the Division Bench judgment of this Court in Suresh Kumar''s case (supra), dismissed the application for setting aside the ex parte decree but at the same time has made a reference of Rule 12 of Chapter II of the Bar Council of India Rules framed under Section 49(1)(c) of the Advocates Act, 1961, which provides that "an advocate shall not ordinarily withdraw from engagements once accepted without sufficient cause and unless reasonable and sufficient notice is given to the client. Upon his withdrawal from a case, he shall refund such part of the free as has not been earned". It was observed that the party should have proceeded against the advocate for his alleged misconduct before the State Bar Council concerned and has referred to a judgment of the Andhra Pradesh High Court in the case of M. Sidda Reddy and Others Vs. Lakshmamma and Another, .

In Kulwant Kaur''s case (supra), again an ex parte decree was passed because of non-appearance of the advocate pleading no instructions and this Court, while referring to the Division Bench judgment of this Court in Suresh Kumar''s case (supra), dismissed the revision petition filed by the petitioner.

On the other hand, in Malkiat Singh''s case (supra), the Apex Court has held that if the party is neither careless nor negligent and engaged a counsel for defending the suit, he should not be held liable and the trial Court should have allowed such party to join the proceedings from the stage when the counsel reported no instructions.

In Tahil Ram''s case (supra), it was held that a party who was not aware of the date of hearing and the advocate who withdraws from the suit proceedings, deserves a notice of actual date of hearing.

In Surinder Kumar''s case (supra), this Court had held that in case counsel pleads no instructions, there is no provision in the CPC under which the appeal can be dismissed for want of instructions and the appeal can be dismissed either on merits or in default of appellant and in any case, the Court should have issued fresh notice to the appellant calling upon him to proceed with the appeal.

In Baljit Singh''s case (supra), it was held that if the appellant is not present in the Court and his counsel pleads no instructions, it is incumbent upon the Court to issue notice to the parties.

In M/s. A.A. Enterprises''s case (supra), the same view has been expressed by this Court.

From the resume of the aforesaid facts and circumstances of the present case, one thing his clear that the appellant had engaged Shri P.L. Bansal, Advocate to appear on her behalf in the appeal. It is admitted by the respondents that the appellant had never appeared on any date during the pendency of the appeal. It is also not in dispute that the appellant is an illiterate rustic villager of 72 years of age suffering from various ailments, as stated by the doctor attending to her, who had appeared as AW1. It is also admitted fact that her advocate Shri P.L. Bansal, Advocate did not inform her about his decision of not appearing on her behalf, that too at the stage when the appeal was fixed for arguments.

Insofar as the legal position is concerned, every case has to be decided on its own facts. Much emphasis has been supplied in the judgments in Suresh Kumar''s case (supra), in which an ex parte order passed by the Workmen''s Compensation Commissioner in favour of the claimant has been maintained, dismissing the application for setting aside the ex parte decree filed by Suresh Kumar who was respondent No. 2 on the ground that he might not have fulfilled the obligations qua his advocate Shri P.L. Bansal, Advocate, as a result thereof, he made a statement that he had no instructions. This yardstick cannot be applied in every case until and unless evidence is brought on record as to why the advocate had stopped appearing on behalf of the party. Moreover, if the advocate pleads no instructions on behalf of his client at the stage of arguments, then there could be possibility that he might have connived with the other party and his integrity and credibility could also be doubtful.

Similarly, in Lachman Dass''s case (supra), no instructions were pleaded at the stage of filing of the written statement and the application for setting aside the ex parte decree was filed after more than 4 years. It is not the case that Lachman Dass was not able bodied person who could have attended the Court to know about fate of his case till the decree was passed unlike the facts and circumstances of the present case in which the appellant is an old rustic villager who was supremely confident after paying the fee to her advocate that her interest would be watched by him as a result thereof, admittedly, she never appeared in the Court because her presence was not required in appeal and she has also averred in the application that her advocate told her that her presence is not required and she would be intimated about the decision. Thus, in these circumstances, I am of the considered opinion that the impugned order passed by the Court below is patently erroneous and hence, the present revision petition is hereby allowed and the impugned order is set aside.