Thangian vs Ramaswamy and Others

Govardhan, J.—This appeal is against the order passed by the learned Sub Judge, Pattukottai dated 9.12.1986 dismissing the application to

restore the appeal which was dismissed for default.

The plaintiff who was the appellant before the Sub Judge, Pattukottai is the appellant herein.

The petitioner''s case is as follows: The petitioner/appellant/plaintiff has preferred the appeal against the judgment passed in O.S. No. 222 of

1982 on the file of the District Munsif''s Court, Pattukottai. He filed an application for reception of additional pleadings. It was dismissed by the

appellate Court. The appellant preferred a revision to the High Court and the bundle was with the Advocate at Madras. The bundle could not be

received by the appellant from Madras before the hearing date. On receipt of the same he met his advocate at Pattukottai. He was informed that

the appeal was posted for hearing on 26.2.1986 and since the appellant did not meet the Advocate, his Advocate had reported no instructions and

on that ground, the appeal has been dismissed for default. On 26.2.1986 the appellant could not meet his advocate since he has admitted his child

in the hospital and was attending on it. The failure of the appellant to be present on the hearing date is no wilful. Hence the application to restore

the appeal.

The respondent in his counter contends as follows: The appellant could have brought the records before the hearing date if only he had made a

trip to Madras to meet his advocate. The revision filed by the appellant was dismissed by the High Court. The appellant wants to drag on the

litigation. His claim that his child was unwell and he is attending on it on 26.2.1986 is not true. Party''s presence in court when the appeal is being

argued is not necessary. If he had given instructions to his advocate, the advocate would have got on with the appeal. The petition is frivolous and

is liable to be dismissed.

On the above pleadings, the learned Sub Judge has held that the appellant who has filed the application has not given the details of the child said

to have been unwell and that he had not produced any medical certificate to prove the same and his claim that only when he met the advocate, he

was informed that the appeal has already been dismissed is not acceptable and therefore dismissed the application.

The appellant herein is the plaintiff who had lost his case before the trial court. He had preferred an appeal before the Sub Court, Pattukottai

and the appeal was dismissed on account of the fact that his advocate had reported no instructions. The reason given by the appellant for his

advocate who has reported no instructions is that he could not meet him earlier. In the decision reported in Choorampulikkal Assam Kutty and

Ors. v. Ramanulukkal Kunhi Mohideen Kutty and Ors. AIR 1955 Mad. (N.U.C.) 2441, it has been held that in an application to set aside an ex

pane decree and restoration of appeal for re-hearing the court has got discretion to order it and if it had allowed the application and given the

respondent a chance of being heard in support of the judgment of the trial court, it would be exercising the discretion properly. In the same

decision, it has been held as follows:

When an advocate reports no instructions it can of course in the large majority of cases be presumed that the client had made no response to more

than one call for the balance of his fees. In cases of this kind a final opportunity may well be afforded in the form of a court direction to the

advocate to send a registered letter to his defaulting client that he will report no instructions to the court if he does not instruct him or himself attend

court on the adjourned date. It is not possible to lay down any hard and fast rule. A human approach of the kind by courts instead of disposing of

appeals ''ex parte'' and applications to rehear them too strictly in accordance with the requirements of Order 41, Rule 21, which taken literally has

no real relation to conditions which now exist, will do something to bridge the gulf between the urban lawyers and the village, which the Bench and

the Bar should do their best to achieve.

In the decision reported in Rafiq and Another Vs. Munshilal and Another, , it is held as follows:

A party who, as per the present adversary legal system has selected his advocate briefed him and paid his fee can remain supremely confident that

his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for

the inaction, deliberate omission or misdemeanour of his counsel.

When we approach this appeal in the light of the above two decisions, we have to come to the conclusion that the Subordinate Judge, Pattukottai

cannot be said to have exercised the discretionary powers vested with him in a proper manner. It is the appellant before him who has come to

Court with a prayer for declaring that the suit property belonged to him and for restraining the respondent in the appellate Court by means of an

injunction interfering with his possession and enjoyment of the property. The plaintiff had lost his case before the trial court. It is not as if the

plaintiff/appellant was enjoying some benefit and he is trying to drag on the matter. The relief sought for by him having been declined to him in the

trial court, it cannot be stated that he wants to drag on the proceedings. By allowing the application to restore the appeal and deciding the appeal

on merits, no prejudice would have been caused to the respondent. Therefore, I am of opinion that the appellate court has failed to exercise the

discretionary power vested in it in a proper perspective and in that view, the order passed by it is liable to be set aside.

In the result, the appeal is allowed. The Subordinate Judge, Pattukottai is directed to restore the appeal on file and dispose of the same on

merits after giving sufficient opportunities to both parties to put forward their case, within three months from the date of receipt of the records from

the High Court and report the matter to the High Court. No costs.