Sundarammal vs Karuppannan and Another

K. Govindarajan, J.—The defendant who failed in her attempt to set aside the ex parte decree before the courts below, has filed the above

revision petition.

The respondents filed a suit for specific performance of the agreement dated 31.10.1990. The petitioner herein filed a written statement and

contested the suit. The suit was posted for trial on 18.11.1993. Since the defendant did not appear on that date, the defendant was set ex parte

and the suit was decreed on the same date. The petitioner/defendant filed petition under Order 9, Rule 13 of the CPC on 20.12.1993. But it

seems that the petition was returned and subsequently on 26.04.1994 it was represented. But, ultimately, it was numbered as IA79 of 1996 only in

1996.

The petitioner in the said LA. in the affidavit filed in support of that petition has stated that in view of the death of her maternal aunt, she went to

her native place on 23.10.1993 and so she could not attend the hearing on 18.11.1993. The second respondent in that LA. filed a counter

statement opposing that petition. The trial court rejected the application on 14.06.1996, on the ground that the petitioner has not established the

reasons for not attending the court on 18.11.1993. Aggrieved against the same, the petitioner herein has filed the above revision petition.

The learned counsel for the petitioner has submitted that the petitioner took diligent steps to file the petition to set aside the ex parte decree, on

20.12.1993 through her advocate, but she depended upon her advocate to pursue the same. But, unfortunately, she came to know only when the

delivery was ordered and that the ex parte decree was not set aside. Then immediate steps were taken to file a petition to condone the delay in

representation and that petition in LA. No. 78 of 1996 was brought to the court and after getting orders on that application, the present application

was brought before the court for orders. The counsel who appeared earlier died on 12.06.1995. Thereafter the sale deed was said to be executed

on 27.07.1995, pursuant to the order in execution petition.

The learned counsel for the respondents, per contra, has submitted that it was proved before the Court that the petitioner was present on

18.11.1993, and, in spite of that, she did not appear before the court, and the reasons stated by the petitioner for non-appearance has not been

proved, and on that basis the learned counsel for the respondents submitted that the courts below have rightly rejected the petition to set aside the

ex parte decree.

It is not disputed that the petitioner was set ex parte on 18.11.1993 on the basis that she was not present when the case was called, and on the

same day ex parte decree was passed. The petitioner immediately filed a petition on 20.12.1993 to set aside the ex parte decree, that is, within 30

days from the date of decree. Though it was re-presented on 26.04.1994, the lower court did not process it. This will prove that the petitioner

took diligent steps before the lower court, instructing her counsel to file the petition to set aside the ex parte decree. Thereafter it is the duty of the

advocate to pursue the matter and bring it to the court for orders and lower court should not have kept pending the application without processing

it. According to the petitioner she is an illiterate lady and she could depend upon her advocate only. After the ex parte decree is passed, the

respondents have filed E.P. No. 149 of 1994 to execute the ex parte decree. After receipt of the notice, the petitioner engaged the advocate and

filed vakalath on 21.07.1994. But, unfortunately that advocate died on 12.06.1995. It is the case of the petitioner that she was not intimated about

the events which took place in the case, in spite of her attending the advocate''s office regularly. So she changed some other counsel and filed

vakalath on 1.12.1995. Only thereafter, on going through the entire case papers, the present advocate came to know that the application filed on

20.12.1993 and re-presented on 26.04.1994 was not numbered and immediately took steps to number the same and brought it to the court for

orders. These facts will clearly prove that the petitioner took diligent steps to set aside the ex parte decree and the trial court dismissed the petition

mainly accepting the version of the second respondent that though the defendant was present in the court, did not attend the proceedings when the

case was called, and that the defendant has not produced the death certificate. But I do not find any statement in the counter filed by the

respondents stating that the defendant was present in court on 18.11.1993. On the other hand in paragraph 6 of the counter, it is stated that the

allegation that the petitioner could not make herself present on 18.11.1993 since she had been away is not admitted, and she is put to strict proof

of the same. In the absence of any such pleading, the trial court has erroneously come to the conclusion, on the basis of the evidence of R.W. 1 to

the effect that the defendant was present in the court on 18.11.1993 and purposely did not participate in the proceedings. The lower appellate

court also has not properly understood the pleadings. It is not the case of the petitioner that the petitioner''s maternal aunt died on 18.11.1993. The

courts below have disbelieved the version of the petitioner regarding the death of her maternal aunt. Though there is a specific version in the

affidavit, to that effect it is not denied by the respondents in the counter, regarding the said fact.

On the basis of the above pleadings and findings of the Courts below, it has to be decided whether the petitioner is entitled to get an order to set

aside the ex parte decree. From the facts mentioned above, it will be clear that the petitioner engaged an advocate and instructed to file a petition

to set aside the ex parte decree within 30 days, i.e. on 20.12.1993. Thereafter, an illiterate lady cannot be expected to follow it up. She has

engaged the advocate to do something. The petitioner is an illiterate villager and she has no knowledge of the court proceedings. There is no contra

evidence available on record in this case. I fail to understand what more step the petitioner can take, to avoid the case being thrown out. Merely

because the advocate did not take steps to bring that application earlier, the party should not be allowed to suffer. In similar circumstances, the

Apex Court has held in the decision reported in Rafiq and Another Vs. Munshilal and Another, as follows :-

The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the

obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the

things. The party may be a villager or may belong to a rural area and may have no knowledge of the Court''s procedure.

After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the

appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to

effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High

Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of

his job"".

The above observation of the Apex Court will straightly apply to the facts of this case. The fact that the petitioner took steps to file the petition to

set aside the ex parte decree immediately will clearly prove that the petitioner was diligent. The courts below relied on the evidence of R.W. 1,

though that vital factor was not mentioned in the counter, and dismissed the petition. The findings given by the courts below on that basis cannot be

sustained. I am of the opinion this matter has to be decided on merits.

In the result, the orders of the courts below are set aside, and the suit is restored to file and the trial court is directed to decide the suit on merits

and in accordance with law and dispose of the suit within six months from this date.

It is represented that the sale deed itself has been executed, in view of the order passed in E.P. No. 149 of 1994. So whatever expenses are

incurred by the respondents towards the execution of the sale deed, the petitioner has to pay the said amount to the respondents. The respondents

are directed to furnish those particulars of expenses regarding the execution of the sale deed, within two weeks from this date to the counsel for the

petitioner and the petitioner is directed to pay that amount, within two weeks from the date of the receipt of the details of such expenses to the

respondents, failing which, the order dated 14.06.1996 passed in I.A. No. 79 of 1996 will stand restored. Subject to the above observations, this

revision petition is allowed. There will be no order as to costs. Consequently C.M.P. No. 14428 of 1996 is dismissed.