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PETITIONER: MALKIAT SINGH & ANR.

       Vs.

RESPONDENT: JOGINDER SINGH & ORS.

DATE OF JUDGMENT:       02/12/1997

BENCH: A.S. ANAND, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                THE 2ND DAY OF DECEMBER, 1997 Present:                Hon’ble Dr. Justice A.S. Anand                Hon’ble Mr. Justice V.N. Khare K.K. Mohan, Adv. for the appellants Ujagar Singh, Sr. Adv., and Ms. Naresh Bakshi, Adv. with him for the Respondents.                          O R D E R      The following Judgment of the Court was delivered:      Special leave granted.      The appellants  were tried for the murder of one Harpal Singh and  on conviction,  were  sentenced  to  suffer  life imprisonment and to pay a fine of Rs. 1,000/- by the learned special Court,  Ludhiana vide  judgment dated  1.4.1985. The respondents, it  appears, on  16.8.89 filed  a suit  in  the court of  learned Sub  Judge, 1st  Class,  Samrala  claiming damages from  the appellants  to the tune of Rs. 1,00,000 /- for deprivation  of the  income to  the family members which they used  to get  from deceased  Harpal Singh. The claim in the suit  was contented  by the appellants. They filed their written statement and engaged  a counsel to defend the suit. The trial  court, on  the basis  of  the  pleadings  of  the parties, framed  a number  of issues. After two witnesss for the plaintiffs  in that  suit had  been examined  and  cross examined, it transpires that, on 18.11.1991, learned counsel who had  been engaged  by the appellants herein go defending them in  the suit,  pleaded  "no  instructions"  before  the court. As  a result of the counsel pleading no instructions, the appellants  were proceeded  ex-parte. On  8.2.1992,  the learned trial  court passed  an ex-parte  decree against the appellants.      The appellants went to enquire about the proceedings in the case  from their  counsel. On 6.6.1992 on their enquiry, their  counsel   informed  them  that  he  had  pleaded  "no instructions" as  a result  of which they were proceeded ex- parte and  the suit  had been  decreed ex-parte on 8.2.1992. the  appellants   then  engaged   another  counsel   and  on 10.6.1992, filed  an application  under Order  9,  rule  13, C.P.C. for  setting aside the order dated 18.11.1991 and the ex-parte judgment  and decree  dated  8.2.1992.  While  that

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application was  pending adjudication,  the appeal  filed by the appellants  against their  conviction and  sentence  was heard by  this Court.  On 7.3.1995,  the order of conviction and sentence was set aside.      The trial  court dismissed the application filed by the appellants under  Order 9,  Rule 13,  C.P.C.  on  22.1.1996. their appeal  failed before  the learned  District Judge  on 18.10.1996. The  High Court  dismissed  the  civil  revision petition filed  by hem  in-limine on  13.12.1996. hence this appeal by special leave.      We have  heard learned  counsel for the parties in this appeal and perused the record.      There   is no  denying the fact that the appellants had engaged a  counsel to  defend them  in the  civil suit.  The counsel for the appellants pleaded "no instructions" but the court did  not issue  any notice to the appellants, who were admittedly not  present  on  the  date  when  their  counsel reported no  instructions in  the court. it is nobody’s case that the  counsel informed  them after  he had  reported  no instructions to  the court. The appellants only came to know about the  order dated  18.11.1991 and  the ex-parte  decree dated  8.2.1992   when  they  approached  their  counsel  on 6.6.1992. It  was  within  four  days  thereafter  that  the appellants filed  an application  under Order  9,  Rule  13, C.P.C. for  setting aside the order dated 18.11.1991 and the decree dated .12.1992.      The appellants  in their  application  clearly  pleaded that they were neither careless nor negligent and as soon as they learnt about the ex-parte decree dated 8.2.1992 and the order dated  18.11.1991, they  filed the  application to set aside the order and ex-parte decree. A perusal of the record also reveals  that the  appellants were neither careless nor negligent in  defending the suit. they had engaged a counsel and were  following the proceedings. In this fact situation, the trial  court, which had admittedly not issued any notice to the  appellants  after  their  counsel  had  reported  no instructions, should  have,  in  the  interest  of  justice, allowed that  application and proceeded in the case from the stage when  t  he  counsel  reported  no  instructions.  The appellants cannot,  in the  facts and  circumstances of  the case, be  said to be at fault and they should not suffer. In taking this  view, we  are fortified  by a  judgment of this Court in  Tahil Ram Issardas Sadarangani & Ors. Vs. Ramchand Issardas Sadarangani & Anr. (1993 (Supp.) 3 SCC 256) wherein the bench opined:-      "It is  not disputed in the present      case that  on March  15, 1974  when      Mr. Adhia,  advocate withdrew  from      the case,  the petitioners were not      present in  court. There is nothing      on the record to show as to whether      the petitioners  had the  notice of      the hearing  of the  case  on  that      day. we  are of  the view, when Mr.      Adhia withdrew  from the  case, the      interests of justice required, that      a  fresh  notice  for  actual  date      hearing should  have been  sent  to      the parties.  In any  case  in  the      facts  and  circumstances  of  this      case we  feel that  t he  party  in      person was not at fault and as such      should not be made to suffer."      In view  of  what  we  have  said  above,  this  appeal succeeds and  is allowed. The order of the trial Court dated

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18.11.1991 and  the ex-parte  decree dated  8.2.1991 and the ex-parted decree  dated 8.2.1992  are set aside. we also set aside the  order of  the District Judge and that of the High Court dismissing  the civil  revision petition.  The case is remanded to  the trial  court for its disposal in accordance with law.  The trial  court shall proceed with the case from the stage,  where the case was on 18.11.1991. There shall be no order as to costs.