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D.H. Waghela, J.—This appeal seeks to challenge the judgment and order of the learned 2nd Joint District Judge, Mehsana inCivil Miscellaneous Application No.77 of 1999 whereby theappellants'' prayer to quash and set aside the order ofthe learned Extra Assistant Judge, Mehsana dated11.3.1999 in Regular Civil Appeal No.54 of 1994 wasrejected. The original Regular Civil Appeal No.54 of1994 was preferred from the judgment and decree passed inRegular Civil Suit No.314 of 1967 on 31.1.1994. The saidappeal was dismissed for default under Order 41 Rule 17 of the Code of Civil Procedure. The impugned order inCivil Miscellaneous Application No.77 of 1999 ischallenged mainly on the ground that at the time ofhearing of the original Regular Civil Appeal, theadvocates of the appellants could not proceed forsufficient reasons and that the appellants, who are pooragriculturists, should not be made to suffer for thefault, if any, on the part of their advocates. Seven ofthe respondents herein have appeared on caveat and anaffidavit-in-reply on behalf of the respondents is filedby the respondent No.2.
A few points from the background of facts of thiscase are required to be noted. The respondents are theoriginal plaintiffs in Regular Civil Suit No.314 of 1967which came to be decreed after about 27 years on31.1.1994. The appeal preferred therefrom by the presentappellants, being Regular Civil Appeal No.54 of 1994, wasfiled on 25.3.1994 and it remained pending for about fiveyears. This appeal is stated by the respondents to havebeen the oldest regular civil appeal at the relevant timein the court concerned. The respondents have alsoaverred that the hearing of that appeal was adjournedfrom time to time only on account of the appellants''applications on the ground that the concerned lawyerswere engaged in some domestic and social work or thatthey could not contact their clients before the date ofhearing or that the concerned lawyers and their clientscould not remain present on account of some so-calledunavoidable circumstances. This situation is alsorecorded in the order dismissing the appeal for default.In fact, the learned Judge has, while dismissing theappeal for default, observed as under:
"At the time of passing order in the present appeal for making the dismissal under Order 41 Rule 17 of C.P.C., I am conscious of the fact that it is a painful task for the concerned Judge to make the dismissal of present appeal because it was expected since 2 years that there would be appropriate and effective final hearing of present appeal. However, it has been proceeded by granting adjournment from time to time under one or another pretext canvassed and/or conveyed by filing application for adjournment with affixation of Court fee stamp of 0.65 paise. I am of the view that there would not be proper and reasonable justification for a Judge acting as an appellate authority to grant adjournment in a casual manner because it is an appropriate time to impress upon the concerned such type of litigants that such type of unwarranted and undesirable approach and attitude in the administration of justice cannot be encouraged, for otherwise there would be impression in the mind of concerned litigants as well as their lawyers that the adjournments are being granted in a casual manner by way of routine practice and procedure of civil Court."
It appears from the record that two learnedadvocates were engaged by the appellants to representthem in the original Regular Civil Appeal No.54 of 1994.While making an application for setting aside the exparte order in appeal, the appellants have averred thaton the date of dismissal of the appeal, one of theadvocates was suddenly taken ill and during the course ofthat day he was supposed to remain under medicaltreatment and hence could not go to the court. Althoughno reason is given for the absence of the other advocate,it transpires from the record that an adjournmentapplication was given by that advocate vide Ex.63 and thesaid application was rejected. It is noted in theimpugned order that the first mentioned advocate ShriC.G.Bhavsar has not filed any affidavit and has notproduced any documents regarding his sickness and noreason is given as to why the other senior advocate ShriR.D.Shah did not remain present on 11.3.1999 when theappeal was dismissed for default. In this context, anaffidavit of Shri C.G.Bhavsar is filed in the presentproceedings vide Civil Application No.4646 of 2000. Theaffidavit reads as under:
" I, Shri C.G.Bhavsar, has been practising as an advocate at Mehsana since last about 15 years. I was engaged in this work by four appellants and with Shri R.D.Shah, advocate. That, on the day of the final hearing of the appeal, as I became sick, and hence could not appear before the appellate court and the appeal has been dismissed. I further say that at the time of hearing of the application for restoration, there was discussion about producing my medical certificate or affidavit but, the learned Judge Shri K.C.Kella told that it is not necessary for the advocate either to submit affidavit of his sickness or to produce medical certificate to prove his sickness."
Whereas the restoration application was heard by thelearned 2nd Joint District Judge of Mehsana Mr.D.R.Shah,there could not have been any question of the learnedExtra Assistant Judge Shri K.C.Kella, who dismissed theappeal for default, telling the learned advocate that itwas not necessary for the advocate either to submitaffidavit of his sickness or to produce medicalcertificate to prove his sickness. On the other hand,if, as stated in the affidavit, at the time of hearing ofthe application for restoration the learned advocate wastold as above, the learned Judge deciding the restorationapplication would not have observed in the impugned orderthat the learned advocate had not produced any documentfor his sickness. Thus, in short, except the bare wordsof the learned advocate, who does not mind makingincorrect statement and casting doubt against the learnedDistrict Judge on oath before this Court, there isnothing on record to suggest that the learned advocatewas taken ill at the relevant time. According to thecertified copy of the Rojnama of the proceedings held inCivil Appeal No.54 of 1994, on the fateful day, i.e.11.3.1999, the advocates of the parties are shown to bepresent. As for the another advocate on record, excepthis filing of an application for adjournment, which wasrejected, there is nothing to explain his absencepresumably after submitting the application foradjournment.
The application for adjournment which wasrejected states the first reason to be that the appellantwas directed to remain personally present and that theappellant has not been able to come due to death in hisfamily; and that the advocate was proceeding to Ahmedabadon that day to attend a marriage. No reason isforthcoming for the learned advocate to assume that theCourt would grant adjournment for the umpteenth time onsuch grounds.
There were other objections to the restorationapplication insofar as, out of more than 24 appellants,only 15 of them had signed the vakalatnama of the learnedadvocate Shri C.G.Bhavsar and yet he had filed CivilMiscellaneous Application No.77 of 1999 on behalf of allthe appellants. Even the name of a dead person is statedto have been shown to be an applicant in the saidapplication. Under these circumstances, the CivilMiscellaneous Application of the appellants has come tobe dismissed by the impugned judgment and order dated29.4.2000. Even thereafter, after obtaining a certifiedcopy of the impugned order on 5.5.2000, the presentappeal is presented on 19.6.2000 also mentioning that theapplication for final decree in the court of the CivilJudge (J.D.), Kalol was fixed for hearing on 17.6.2000.
The above stated record of facts leaves no roomfor any doubt as to the intentions and tactics adopted bythe learned advocates on behalf of the appellants. Thequestions that, therefore, arise are whether theappellants can now be heard to say that they would sufferon account of the absence of their advocates at therelevant time and whether the past record of theappellants'' appearance in general can be taken intoaccount in deciding the application for setting aside anex parte order. In this context, the learned advocatefor the appellants relied upon the judgment of theGauhati High Court in Nirmal Das Gupta Vs. Prasanta Das Gupta and Others, and particularly pointed outthe following observations of the Hon''ble Supreme Courtin Rafiq and Another Vs. Munshilal and Another, quoted therein:
"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."
The ratio of RAFIQ case (supra) is later on quoted andconsidered by the Hon''ble Supreme Court in Salil Dutta Vs. T.M. and M.C. Private Ltd., whereinthe Hon''ble Supreme Court has observed as under:
"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 recognized. Such an absolute rule would make the working of the system extremely difficult. The observations made in Rafiq case must be understood in the facts and circumstances of that case and cannot be understood as an absolute proposition. As 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 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. 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 accepted."
Here in the facts of the present case, assuming ascorrect the averments that the appellants are pooragriculturists, it cannot be believed that all of themwere totally ignorant and inexperienced litigants in viewof the fact that they have been involved in a litigationlasting over three decades, and non-cooperation by themor on their behalf is writ large on the record.
As observed by the Hon''ble Supreme Court, albeitin a different context, in State of West Bengal Vs. Pranab Ranjan Roy, : "Order 41 Rule 17 of the Code deals with the consequence when theappellant in an appeal does not "appear". In all suchinstances, "appearance" would include appearance by theadvocate, because it is made so clear in Order 3 Rule 1 of the Code that any appearance required by law to bemade in any court may be made "by the party in person, orby his recognized agent or by his pleader on his behalf".Therefore, if these provisions are strictly applied, itwould be illogical to ascribe plurality to a party in thematter of appearance according to its convenience.
In the Scheme of the Code of Civil Procedure, theappearance of an advocate is treated as the appearance ofthe party who has engaged the advocate. Thus, the partygets all the benefits and advantages of its appearancethrough an advocate. In a given case, a party may beenjoying the fruits of an interim order and delay in thefinal disposal of a litigation. Then, conversely, when aparty has to suffer an ex parte or adverse order due to adeliberate default on the part of his advocate, it canhardly be allowed to detach itself from its advocate andsay that the default was on the part of his advocate forwhich it ought not to be made to suffer. It is notalways true that a party which is aggrieved by an exparte order is bound to be suffering injustice. Theparty on the other side who might be languishing in thecourt for years or decades can be the party who wassuffering injustice. The discretion of the court, evenin the exercise of its inherent powers, to restore a caseby setting aside an ex parte order ought not to beexercised to undo justice.
The relevant provision of the C.P.C., i.e. Order 41 Rule 19, reads as under:
"19. Re-admission of appeal dismissed for default.
Where an appeal is dismissed under Rule 11, sub-rule (2) or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit."
It becomes clear from the reading of this provision that,for re-admission of appeal, the appellant is required toprove the cause of his being prevented from appearing andsuch cause is required to be sufficient. Such cause maynot be required to be proved beyond reasonable doubt,but, at the same time, a mere assertion or averment whichdoes not inspire any confidence in the facts andcircumstances of the case, would not be sufficient.Similarly, sufficiency of the cause would also beexamined in the particular facts and circumstances ofeach case. Although, no strict cut and dried rule can belaid down and the question of sufficient cause demands agenerous approach, it is equally important that thejudicial orders are not casually made or cancellednecessarily resulting into further delays - defeating thecause of justice. In the facts of the present case, asseen earlier, the appellants have, in fact, appearedthrough the advocate but practically refused toparticipate in the proceedings for reasons which areneither proved nor sufficient. Although the earlierattitude and demeanours of the appellants may not berelevant if sufficient cause were proved for absence onthe day of dismissal of the appeal, they have to be takeninto account while examining the probative value of theassertions and averments advanced as sufficient cause.As observed by the Hon''ble Supreme Court in SALIL DUTTA (supra), if a party has adopted a non-cooperative stand,it has no right to ask its indulgence. Also, where theparty has failed to prove any sufficient cause, no orderof restoration ought to be made on any conditions as waslastly suggested by the learned advocate for theappellant.
In Ram Nath and Others Vs. Dy. Director of Consolidation and Others, , where a petition was filed forrecalling the order even on the ground that the learnedcounsel was busy in another court on the date of hearing,Their Lordships of the Supreme Court have observed asunder:
"We are not sure as to who is making this application and whether the appellant is at all aware of these events. We find no justification for recalling the order on the plea that the counsel was busy somewhere. We were not inclined to act upon this kind of plea but on the basis that otherwise the appellant would suffer loss for no fault of his, we have decided to hear the counsel. This practice should not be permitted in this Court any further."
These observations are respectfully accepted asguidelines and are required to be abided by the Bar andthe Bench generally in all legal proceedings.
In the facts and circumstances as above, theappellants have failed to prove that they were preventedby any sufficient cause from appearing when the appealwas called on for hearing and have also failed to makeout any ground for interfering with the impugned order.On the contrary, the appellants'' original application forre-admission of appeal was lacking in bona fide and thedemeanours of their advocates during the appellateproceedings can only be deprecated.
In the result, the appeal is summarily dismissedwith costs. A copy of this judgment shall be furnishedto the office of the Bar Council of Gujarat.