Panneerselvam and Another vs Sukumaran

S. Rajeswaran, J.—The facts are as follows: The unsuccessful Plaintiff before both the Courts below filed the above Second Appeal and this Court on 22.4.2008 allowed the same on merits by setting aside the orders of both the Courts below and consequently granted a decree for specific performance relating to all the items of Suit schedule property excepting item No. 2.

It is not in dispute that when this Court heard the arguments, the learned counsel for the respondents in the Second. Appeal was not present and there was no representation on behalf of the respondents in the Appeal and in fact, the learned judge himself in Para 2 has clearly stated that no one appeared for the respondents, even though the names of the respondents were printed in the Cause-List. Thereafter, this Court proceeded to hear the Appeal on merits and accordingly allowed the same after hearing the learned counsel for the appellant. In the order dated 22.4.2008, this Court directed that the remaining part of the sale consideration if not already deposited shall be deposited within a period of two months from the date of receipt of copy of the order.

After the Second Appeal was disposed off, the respondents in the Second Appeal filed M.P. No. 1 of 2008 u/s 5 of the Limitation Act to condone the delay of 144 days in filing the re-hearing Petition, which was filed in un-numbered M.P.SR. No. 43783 of 2008.

In the affidavit filed in support of these Petitions, the first respondent in the Appeal stated that the plaintiff''s suit for specific performance was dismissed by the Trial Court as well as the Lower Appellate Court. Challenging those concurrent judgments, the plaintiff filed S.A. No. 410 of 2001 which was originally filed before the Principal Bench of this Court. On the formation of the Madurai Bench, i.e., this Court, the above Appeal was transferred to Madurai Bench and no notice was sent to him with regard to the transfer and his counsel also did not inform him about these aspects. He came to know about the order passed in the above Appeal on 20.9.2008 only, when the appellant was openly declaring in the village that he succeeded in the Appeal. Thereafter he verified and found that the Appeal itself was disposed on 22.4.2008 allowing the same in his absence. Therefore, he filed the above Petitions.

This Petition was opposed by the appellant in the Appeal by filing a counter. It was mainly contended that as the Appeal itself was disposed off on merits by this Court, the re-hearing Petition is not maintainable and therefore, the Application to condone the delay in filing the re-hearing Petition is bereft of merits.

The appellant also filed M.P. No. 2 of 2008 u/s 148, C.P.C., to extend the time granted in the order dated 22.4.2008 by two weeks for depositing the balance of sale consideration into the Court.

In the affidavit filed in support of M.P. No. 2 of 2008 the appellant stated that this Court directed him to deposit the balance of sale consideration within a period of two months and the result of the Appeal was also communicated to him. He gave the balance sale consideration of Rs. 5,000/- to his Trial Court counsel for deposit. However, the Trial Court counsel asked him to bring the judgment copy to enable him to deposit the same amount. After receiving the copy of the judgment, the same was sent to the Trial Court counsel, but there was a loss of cover sent by him during the transit containing the judgment resulting in his counsel could not deposit the balance amount into the Court in time. Hence, he has filed M.P. No. 2 of 2008 for the aforesaid relief.

I have heard the learned counsel for the respondents and the learned counsel for the appellant in the Appeal.

The learned counsel for the respondents in the Appeal/the petitioners herein contended that the order was passed in the absence of the counsel for the respondents and therefore, it is to be set aside when the respondents have come out with proper reasons for their absence while the Appeal was taken up and disposed off by this Court.

The learned counsel relied on the judgment of this Court reported in Vasu Thevar and Others Vs. Rukmani Ammal and Another, , and another judgment of the Honourable Supreme Court reported in Savithri Amma Seethamma Vs. Aratha Karthy and Others, .

Per contra, the learned counsel for the appellant contends that this Court passed an elaborate order on merits and it is not an ex parte order to be set aside. He further urged that both the respondents and their counsel are very much aware of the pending proceedings before this Court and therefore, there was no bona fide on the part of the respondents. In support of his submissions he relied on a judgment of the Honourable Supreme Court reported in Indu Bhushan Vs. Munna Lal and Another, .

I have considered the rival submissions carefully with regard to facts and citations.

It is not in dispute that on 22.4.2008 when this Court passed orders allowing the Appeal, there was no representation on behalf of the respondents in the Appeal and in fact, the learned judge himself has clearly stated in Para 2 of the order that despite printing the name of the respondents, no one appeared on behalf of them. If that being so, it is an order which has been passed without the presence of the respondents and if the respondents come out with acceptable and genuine reasons for not representing the matter on 22.4.2008, I am of the considered view that this Court has to necessarily set aside the order and permit the respondents to argue the matter on merits. The fact that the order was passed on merits is not a ground to refuse re-hearing if proper and necessary reasons are put forward on the side of the party who was not present at the time of disposing off the Appeal.

In Savithri Amma Seethamma Vs. Aratha Karthy and Others, the Hon''ble Supreme Court held when the person has sufficient cause for not being present, at the hearing of Application, the Court has to allow an Application for re-hearing applying the principles underlying the Order 41, Rule 21 of C.P.C.

In that case, a C.R.P., was filed before the High Court and the advocate engaged on behalf of the respondent in the C.R.P., could not appear because he was engaged in another Court. When he came to know about the order passed in the Revision Petition in his absence, an Application was filed for re-hearing the C.R.P. This was rejected by the High Court and challenging the order of the High Court, an Appeal was filed before the Honourable Supreme Court. After hearing the matter, the Honourable Supreme Court allowed the Appeal on costs and permitted the appellant before the Supreme Court to re-argue the C.R.P.

In Vasu Thevar & Others v. Rukmani Ammal & another, 2000 TNLJ 65, the Suit filed by the Plaintiff was dismissed and challenging the same, a First Appeal was filed. When the First Appeal came up for hearing, the respondent''s counsel reported no instructions and in his absence, the Appeal was disposed off allowing the Appeal. Thereafter, the respondents in that Appeal filed a Petition to set aside the ex parte order, but the same was dismissed by the First Appellate Court. That order was challenged before this Court and this Court observed as follows:

In the affidavit filed in support of the Application filed before the Lower Appellate Court to set aside the decree dated 30.10.1998, it is stated that due to illness of the first petitioner-Vasu Thevar, he could not issue necessary instructions to their counsel on 22.10.1998. It is also stated that at the relevant time, he was having kidney problem and taking treatment in the Government Hospital and also produced a certificate to that effect. According to him, even though he was advised by his doctors that he must be in bed rest for three months. Thereafter, after consulting his doctor on 1.11.1998, he met his advocate and heard about the ex parte decree passed on 30.10.1998. Thereafter, he filed the Application. No doubt, learned counsel appearing for the respondents would contend that there is no explanation with regard to the steps taken by other parties. For this, it is stated that Vasu Thevar, father of the other applicants alone was pursuing the courts proceedings and in such a circumstance, they cannot be blamed for not sending any necessary instructions to their counsel. After going through the affidavit filed in support of the above Application, I am satisfied that the appellants have made out a case for rehearing the Appeal in order to give an opportunity to them to contest the case of the Plaintiffs. Accordingly, I hold that the appellants have made out a case for re-hearing the Appeal and the same has not been properly appreciated and understood by the Court below. The impugned order of the Court below is liable to be set aside.

In a matter like this, I am of the view that reporting of "no instructions" should not be for the asking and it should be permitted only if the counsel satisfies the judicial conscience of the Court that for the compelling reasons he was posed to plead "no instructions". The Court should first satisfy itself that there is sufficient cause for the counsel to withdraw from the case and on such withdrawal being permitted the Court should order notice to the party whose counsel has reported "no instructions". I am also of the view that it is the duty of the Court whether the matter is unrepresented without sufficient cause. If sufficient cause is shown, then it is the duty of the Court to issue notice to the person concerned informing him that his advocate has revoked his vakalath and thereby call upon him to take appropriate steps as necessary for him to defend his case. In my opinion, it is always the duty of a counsel before pleading no instructions to inform the party that for a particular reason he shall not be appearing the case and may plead no instructions. The confidence deposed by parties in the counsel is most important. A person who is not present in Court pre-supposes that because of engagement of a counsel his interest would be necessarily looked after. It is the duty of the counsel to inform him before he proceeds to plead no instructions. In our case, when the matter is pending before the Lower Appellate Court, the counsel for the respondents therein reported no instructions. In such circumstance, it was the duty of the Court to enquire from the counsel concerned as to why and under what circumstances he was pleading no instructions. The Court cannot be a silent speculator to the scene which is staged in the Court.

The judicial conscience of the Judge should always be satisfied before he permits a lawyer either to withdraw or to retire from the case. In the instant case, it does not appear from the proceedings that the learned Judge had taken all necessary steps to ensure that the counsel had sufficient reason not to appear for the party who engaged him or plead no instructions. A party who reposes confidence and relies on counsel is entitled to be under the belief that his interest would be looked after properly by the counsel. A Judge ordinarily should not permit a lawyer to plead no instructions unless the lawyer satisfies the judicial conscience of the Court that for the compelling reasons he was posed to plead no instructions. I have already observed that there is nothing on record to show as to whether the appellants as the notice of hearing of the case on that date. As observed by their Lordships of the Honourable Supreme Court when the counsel withdrew from the case, the interests of justice required that a fresh notice for actual date of hearing should have been sent to the parties. Such recourse has not been followed by the Court below.

By citing the above two judgments, the learned counsel for the respondent has correctly submitted that the order passed by this Court on 22.04.2008 in S.A. No. 410 of 2001 is to be set aside and the Appeal is to be re-argued.

But the learned counsel for the appellant relying on the judgment of the Supreme Court reported in Indu Bhushan v. Munna Lal & Another, AIR 2007 SC 1114, submitted that their is no merit in the Petition filed by the respondents and the same is to be rejected. In that judgment, the Hon''ble Supreme Court found that not one but several process servers have given notice relating to service and their endorsements were sufficient to show service of notice relating to the Appeals. Thereafter, the Supreme Court rejected the contention that there was no service of notice and on that basis came to the conclusion that no case was made out to set aside the ex parte order passed in the Appeal. The facts in the above case are totally different and they are not helpful to the case of the appellant.

In the light of the above facts and circumstances of this case, I am inclined to allow the condone delay Petition and the petition filed by the respondents for re-hearing the Appeal. I am also satisfied with the reasons adduced for not representing the matter on 22.4.2008. Accordingly, the judgment dated 22.4.2008 is set aside and the respondents in the Appeal are directed to re-argue the S.A. No. 410 of 2001 on merits on condition that the respondents pay a sum of Rs. 2,000/- as cost to the learned counsel for the appellant, within four weeks from the date of receipt of a copy of this order. It is made clear that if the cost of Rs. 2,000/- is not paid within the time stipulated herein, the order passed by this Court on 22.4.2008 will get revived automatically, without further reference to this Court.

In view of the order passed as above, the Petition filed by the appellant in M.P. No. 2 of 2008 is dismissed. In the result, M.P. No. 1 of 2008 and M.P.SR. No. 43783 of 2008 are allowed and M.P. No. 2 of 2008 is dismissed.