K. Narayana Prakash vs B. Chenga Reddy

Immaneni Panduranga Rao, J.—This is a plaintiff''s revision. The" petitioner-plaintiff filed a suit for recovery of money based on a promissory note. The execution of the promissory note is admitted but the defendant pleaded that it is not fully supported by consideration and that certain payments were made by him in partial discharge of the pro-note debt. The decree was passed by the learned District Munsif, Punganur on 31-1-1990. Pleading that on 31-1-1990, the defendant was at Bangalore and was not able to attend the Munsif court due to ill health, he filed a petition under Order 9, Rule 13 of the CPC for setting aside the ex-parte decree, The learned District Munsif rejected that I.A., at the S.R. stage holding that the suit docket dated 31-1-1990 shows that it was represented that the defendant had no evidence and as such, the suit was decreed on merits and hence, the petition filed under Order 9, Rule 13 of the CPC is not maintainable.

On appeal, the learned Additional District Judge, Madanapalle, found-in paragraph 6 of his judgment that on 31-1-1990, to which date the suit stood posted for the defendant''s evidence, the defendant was admittedly not present; that the order of the trial court shows that somebody represented on behalf of the defendant that the defendant had no evidence; that the order of the trial court is silent as to whether that representation was made by the advocate appearing on behalf of the defendant or somebody else on behalf of the defendant and that the advocate for the defendant Who filed the I.A., in the trial court endorsed on the petition that he had not represented on behalf of the defendant that the defendant had no evidence and as such, the decree passed by the lower court is an ex parte decree. The learned appellate Judge believed the allegation that the defendant was taking treatment at Bangalore due to ill-health; that thereby, the defendant could not have been in a position to instruct his advocate to report that he had no evidence and hence, the remedy of the defendant is to file a petition to set aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure. Conequently, the learned appellate Judge has set aside the order of the trial court.

Aggrieved by the said decision, the plaintiff preferred the above revision petition;

The learned counselor the revision petitioner relying upon the decision in Sourendra Nath v. Tarubala Dasi, AIR 1930 Privy Council 158 argued that the advocate is to conduct the cause of his client to the utmost of his skill and understanding and he must, in the interests of his client, be in a position to advance the argument and that he must make the final decision whether evidence is to be given or not on any question of fact. He, therefore, argued that the advocate appearing for the defendant had full authority to report that he did not wish to adduce any evidence on behalf of his client and that such a representation binds the defendant. Relying upon a Division Bench decision of this High Court in Damordardass Agarwal and Others Vs. R. Badrilal and Others, , the learned counsel for the petitioner further argued that for termination of appointment as an advocate, leave of the court is necessary and in the absence of the defendant''s counsel seeking leave of the court for termination of his appointment as an advocate, the representation made by the learned advocate before the trial court that the defendant did not wish to let any evidence binds the party.

The learned counsel for the respondent, on the other hand, submitted that there is no proof in this case that the advocate appearing for the defendant has in fact made a representation to the trial court that the defendant did not wish to let in any evidence. Though the trial court made an observation in its order that the docket entry dated 31-1-1990 showed that it was represented that the defendant had no evidence and consequently, his side was closed, the learned appellate Judge observed that the order of the trial court is silent as to who had represented that fact viz., whether the representation was made by the advocate appearing for the defendant or somebody else on behalf of the defendant. The lower appellate court believed the allegation in the affidavit filed in support of the petition that the defendant was ill and was undergoing treatment at Bangalore on the relevant date viz., 31-1-1990.

When the office of the trial court has taken objection about the maintainability of the application filed under Order 9, Rule 13 of the CPC the advocate for the defendant endorsed on the petition on 26-4-1990 that he never represented that the defendant had no evidence. The lower appellate court has believed that endorsement and held that under those circumstances, the decree passed by the trial court is only an ex parte decree.

The Supreme Court has laid down in Prakash Chander Manchanda and Another Vs. Janki Manchanda, that if on a date fixed, one of the parties to the suit remains absent and for that party no evidence has been examined up to that date, the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2 of the CPC in any one of the modes prescribed under Order 9 of the Civil Procedure Code. The Supreme Court clarified that after the Amendment of the CPC by Act 104 of 1976 to Order 17, Rules 2 and 3, in cases where a party is absent, the only course is as mentioned in Order 17, Rule 3(b) of the CPC to proceed under Rule 2 and that in the absence of the defendant, the court had no option but to proceed under Rule 2. The Supreme Court further held that in such a case, the court cannot proceed to dispose of the suit on merits and the defendant can subsequently file an application under Order 9, Rule 13 of the CPC for setting aside the ex parte decree.

Relying upon the finding of the lower appellate court that there is no proof that the representation that the defendant had no evidence was actually made by the defendant''s advocate, I agree with the decision of the lower appellate court that the decree passed by the trial court is only an ex parte decree and the defendant is entitled to file a petition to set aside the ex parte decree under Order 9, Rule 13 of the Code of Civil Procedure. However, I feel that in the event of the defendant undergoing treatment at Bangalore, he should have taken suitable steps to get a proper representation made in the court through his advocate when the suit was called on 31-1-1990 and his negligence has resulted in the passing of the decree. Under these circumstances, I feel that the learned Additional District Judge should have imposed certain conditions as a condition precedent for setting aside the ex parte decree because the plaintiff has been deprived of realising the fruits of the decree obtained on 31-1-1990. Since the negligence of the defendant has sresulted in unnecessary trouble and expenditure for the plaintiff, I direct that the defendant should pay to the plaintiff, a sum of Rs. 200/- towards costs within two weeks from the date of receipt of the order copy in the lower court as a condition precedent for setting aside the ex parte decree. The said payment of costs shall be irrespective of the result of the suit.

Subject to the above directions with regard to the payment of costs, the C.R.P. is dismissed. No costs.