V.P. Nagarajan vs Prabhavathi

Srinivasan, J.—This appeal is against an order dismissing the application in I.A. No. 858 of 1986 which was one to restore I.A. No. 637 of

1985 which was dismissed for default on 26.2.1986. I.A. No. 637 of 1986 was in turn to restore I.A. No. 486 of 1985 which was dismissed for

default on 29-4-1985. I.A. 486 of 1985 itself was one for setting aside the exparte decree Passed on 22-1-1985 in a suit for specific performance

bearing O.S. No. 14 of 1984, Sub-Court, Poonamallee.

In support of the application I.A. No. 858 of 1986, an affidavit was filed by the learned Counsel for the petitioners. It is very distressing to note

that counsel not only filed the affidavit in support of the application but also signed the application as advocate for petitioners. In recent times, an

unhealthy practice has grown up among the members of the Bar to come out with affidavits in support of their clients even without the clients

themselves filing affidavits setting out the facts. Unfortunately the implication and consequences there of have not been realised by them. Under

Order 31, Rule 2, C.P.C. affidavit will be evidence in an application and the court could order cross-examination of the deponent. Thus the

advocate who files an affidavit in support of an application is liable to be cross-examined and by filing the affidavit, he takes the role of witness.

The Bar Council of India has framed rules u/s 49(c) of the Advocates Act, 1961. Rule 13 in Chapter V in Part III of the rules reads thus-

An Advocate should not accept a brief or appear in a case in which he has reason to belief that he will be a witness, and if being engaged in case, it

becomes apparent that he is a witness on a material question of fact, he should not continue to appear as an advocate if he retires without

jeopardising his client''s interests.

The indiscriminate way in which affidavits are filed by counsel on record nowadays makes me doubt whether any of them is aware of the above

rule.

Even assuming that the circumstances of the case force counsel on record to file affidavits in support of the applications, they should take

immediate steps to protect the interests of the client by not only requesting some other competent advocate to appear as counsel in that particular

matter but also place the necessary materials before the Court to substantiate the averments made by them in their affidavits. The advocate who

files an affidavit in court has no right to assume that his ipse dixit will be accepted by the court automatically without any security. Particularly when

the opposite party challenges the correctness or truth of the averments in the affidavit, it is the paramount duty of the advocate who is the deponent

of the affidavit to produce the best evidence to prove the contents of the affidavit. It will be nothing but vain glory if the deponent thinks that, as

members of the legal profession occupy a very high status, his affidavit is to be accepted on its own weight without any corroboration. No doubt

the elevated position of the Bar is indicated by the term ''la noblesse de la robs'' (the aristocracy of the grown) but it should not be forgotten that

ranks imposes obligations (nobles obelige). Of late, cases of negligence and dereliction from duty on the part of advocates are so rampant that the

members of the noble profession should resort to introspection and bring about measures to restore the dignity and honour of the profession. This

case is itself an eloquent example of gross negligence on the part of counsel on record. I would not have ventured to sermonise like this but for the

argument of learned Counsel for the petitioner that he expected the court below to accept his affidavit as the gospel of truth.

Turning to the affidavit filed by the learned Counsel for the petitioner, he had stated that when the case was posted for enquiry on 26.2.1986, he

was indisposed and could not attend the court. It has to be noticed that no details as to the nature of the said indisposition were set out in the

affidavit. It was not stated as to when the advocate got indisposed and when he became alright. It was further stated in the affidavit that he

requested his colleague advocate Mr.K. Arunachalam to represent him on 26.2.1986, in the court to pray for an adjournment. Here again, the day

on which the petitioner''s counsel requested his friend Mr.K. Arunachalam to represent him in court on 26.2.1986 had not been disclosed. In the

next sentence it was averred that Mr. Arunachalam had forgotten the matter and hence he did not attend the court on 26.2.1986. It is seen that the

matter was posted on 24.2.1986 and adjourned to 26.2.1986 for enquiry.

If the matter was adjourned from 24.2.1986 to 26.2.1986 learned Counsel must have requested to his friend Mr. Arunachalam on 24-2-1986

itself or 25-2-1986 or 26-2-1986 to attend the Court on 26-2-1986 on his behalf. If that was so, there was so, there was no reason as to why

and how Mr. Arunachalam had forgotten the matter within such a short period.

There is no affidavit from the said Arunachalam in support of the claim made by the petitioner''s counsel that the matter was entrusted to him to

be attended on 26-2-1986. The least that the petitioner''s counsel could have done is to produce an affidavit from Mr. Arunachalam supporting his

version. The petitioner''s counsel did not either produce any medical certificate or any other evidence in support of his version that he was

indisposed and could not attend the court. In the absence of any detail of the illness and in the absence of any scrap of record to support his

version, the court below was right in refusing to accept his version.

In the counter affidavit filed by the respondent-plaintiff in the court below in paragraph 6 it was stated very clearly that the allegations made in

the affidavit of the advocate for the petitioner were not true. The allegation that the advocate was indisposed was expressly denied by the

respondent. In view of such denial, it was the duty of the petitioner''s counsel to have placed materials before the court to prove that he was

actually indisposed on 26-2-1986 and could not attend the court. He should have also placed before the court materials to show that he had

entrusted the matter to some other advocate. It is mentioned by learned Counsel for the petitioner that the court below has not decided the

question whether the reason for non-appearance of the appellant on that particular day was genuine or not. When there was no material whatever

to support the averments in the affidavit, the court below was right in taking into account the prior conduct of the appellant.

The suit was posted to 1-12-1984. After the conclusion of the hearing of the plaintiff it was posted for defendant''s evidence. On that day, the

defendant and his counsel were absent and the judgment in the case was reserved. The defendant filed I.A. 335 of 1984 for restoration and it was

ordered. When the matter was again posted the defendant and his counsel were absent. On 22-1-1985, a decree was passed. It is the contention

of the learned Counsel for respondent that it is not an ex parte decree and it is a decree passed on merits and evidence and therefore the

application filed by the petitioner herein I.A. No. 486 of 1985 to set aside the decree is not maintainable. I am not inclined to go into that

contention at present as it does not arise for my consideration in the present proceedings.

The petitioner filed I.A. No. 496 of 1985 to set aside the decree and that was dismissed for default on 29-4-1985. He filed another application

I A. No. 637 of 1985 to restore I A. No. 486 of 1985 and it was dismissed for default on 26-2-1986. The present application is to restore that

application to file. Having regard to the conduct of the appellant, the court below was right in dismissing the application for restoration filed in I A.

No. 853 of 1986.

An objection is taken by learned Counsel for the respondent as to the maintainability of the appeal. Learned Counsel placed reliance on a

decision of a Division Bench of this Court in Sadaya Padayachi and Another Vs. Chinnaswami Naidu, . Learned Counsel for the petitioner invites

my attention to the amendment to Section 141, C.P. Code, brought in by Act 104 of 1976 whereby an explanation was added to the Section by

which the proceedings under Order 9, Rule 9, C.P.C. were included in the expression ''proceedings'' found in the Section. In view of the said

amendment, the decision in Sadaya Padayachi and Another Vs. Chinnaswami Naidu, , will not help the respondent. Hence the appeal is

maintainable.

Since I have dealt with the appeal on merits and come to the conclusion that the order of the court below is correct in the facts and

circumstances of the case this appeal fails and is dismissed. There will be no order as costs.