http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: SALIL DUTTA

       Vs.

RESPONDENT: T.M. AND M.C. PRIVATE LTD.

DATE OF JUDGMENT05/02/1993

BENCH: JEEVAN REDDY, B.P. (J) BENCH: JEEVAN REDDY, B.P. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1993 SCR  (1) 794        1993 SCC  (2) 185  JT 1993 (4)   528        1993 SCALE  (1)451

ACT: Code of Civil Procedure, 1908: Order  9,  Rule  13-Setting aside  ex-parte  decree  against defendant-Cause     for  non-appearance-Improper  advice  of advocate-Whether a sufficient cause-Held:  Cannot as a  rule be accepted-party cannot disown its advocate and        seek relief.

HEADNOTE: The suit flied by the appellant for ejecting the respondents limited  company,  from the suit premises, was  decreed  ex- parte by the trial court since neither the advocate nor  the respondent-tenant, appeared when the case came up for final- hearing.    Thereafter,  the  respondent-company  flied   an application  to set aside the ex-parte decree, stating  that the  non-appearance of the respondent-tenant was due to  the advice tendered by the advocate-on-record to the effect that the respondent-tenant need not be present at the hearing  of the  suit  till  the  disposal  of  the  two   interlocutory applications filed by the respondent-tenant According to it, there was sufficient cause to set aside the ex-parte  decree within the meaning of Order 9 Rule 13 C.P.C. The trial court dismissed  the  said application. The  appeal  against  the trial  court’s order was also dismissed by a Division  Bench of the High Court.  However, before the judgment was  signed by  the  learned  Judges, an application was  moved  by  the respondent-tenant  for  alteration  or  modification  and/or reconsideration  of  the  judgment on the  ground  that  the respondents’  counsel could not bring to the notice  of  the Court,  the  decision of the Supreme Court in  the  case  of Rafiq and Anr. v. Munshilal and Anr., AIR 1981 SC 1400 which supported respondent-tenant’s case.  This was opposed by the appellant   on  the  ground  that  once  the  judgment   was pronounced in open court, it was final and that matter could not  be reopened, just because a relevant decision  was  not brought  to the notice of the court.  However, the  Division Bench  reopened the case on the ground  that  technicalities should  not be allowed to stand in the way of doing  justice to the parties and allowed the appeal, 794 795 relying on the decision.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

In  the appeal before this Court on behalf of the  appellant It was contended that the decision in the case of Rafiq  did not  support  the respondents’ case and the High  Court  had erred  in  holding otherwise, Inasmuch  as  the  respondent- tenant  in the Instant case was a private  limited  company, managed by persons who were not only well-educated but  were practical  businessmen, unlike the appellant In the case  of Rafiq,  who  was  a rustic innocent  villager,  placing  his entire trust In his advocate. On  behalf  of the respondent-tenant it was  submitted  that when the High Court had applied and acted upon a decision of this Court, it would not be proper to set aside their  order under  Article  136  of  the  Constitution,  and  that   the respondent-company  implicitly  trusted their  advocate  and acted  according to his advice and should not  be  penalised therefore. Allowing the appeal, this Court, HELD  :  1.1. The advocate is the agent of the  party.   His acts  and  statements made within the  limits  of  authority given to him, are the acts and statements of the  principal, i.e., the party who engaged him.  It is true that in certain situations,  the Court may, in the interest of justice,  set side a dismissal order or an ex-parte decree notwithstanding the Negligence and/or misdemeanour of the advocate where  It finds that the client was an innocent litigant, but there is no  such absolute rule that a party can disown its  advocate at any time and seek relief No such absolute immunity can be recognised.  Such an absolute rule would make the working of the system extremely difficult. [801G] 1.2. The instant case was an on-going suit posted for  final hearing after a lapse of seven years of its institution.  It was  not a second appeal riled by a villager  residing  away from  the city, where the Court is located.  The  respondent is  also  not  a justice ignorant  villager  but  a  private limited company with its head-office at the place where  the court  is  located and managed by educated  businessmen  who know  where  their interest lies.  It is evident  that  when their interlocutory applications were not disposed of before taking  up the suit for final hearing, they felt piqued  and refused to appear before the court.  May be, it was part  of their delaying tactics as alleged by the appellant.  May  be not.   But one thing is clear  they chose  to  non-cooperate with the court.  Having adopted such a stand towards the 796 Court,  the respondent has no right to ask  its  Indulgence. Putting  the  entire blame upon the advocate and  trying  to make It out as if they were totally unaware of the nature or significance of the proceedings Is a theory which cannot  be accepted and ought not to have been accepted. [802A-C] 1.3. It  is  difficult.  to  believe  that  the  respondents implicitly believed their advocate’s advice.  Being educated businessmen they would have known that non-participation  at the final hearing of the suit would necessarily result In an adverse  decision.   This Court is not prepared  to  believe that  such an advice was in fact tendered by  the  advocate. No  advocate  worth his salt would give such advice  to  his client.   Secondly, there are several contradictions in  his deposition.  Therefore, the story set up by the  respondent- company  in  its  application under Order 9 Rule  13  is  an after-thought  and  ought not to have been accepted  by  the Division Bench, more particularly, when it had rejected  the very case in its earlier judgment [800G-H, 801AE] Rafiq and Anr. v. Munshilal and Anr., A.I.R. 1981 S.C. 1400, distinguished.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 429 of 1993. From  the  Judgment and Order dated 3.3.92 of  the  Calcutta High Court in A.O.O. No. 1036 of 1990. A.K. Ganguli and H.K. Puri for the Appellant. N.S.  Hegde,  Anil  Agrawala  and  L.P.  Agrawala  for   the Respondents. The Judgment of the Court was delivered by B.P.  JEEVAN  REDDY, J. Heard the counsel for  the  parties. Leave granted. The  appeal  is  preferred  by  the  plaintiff  against  the judgment and order of a Division Bench of the Calcutta  High Court    allowing    the    appeal    preferred    by    the respondent/defendant.  The appeal before the High Court  was directed against an order of the City Civil Court,  Calcutta dismissing  an  application filed by the  defendant  to  set aside the ex-parte decree passed against him, under Order  9 rule 13 of the Civil Procedure Code. 797 The relevant facts may be noticed briefly. The  plaintiff/appellant  filed  a  suit  for  ejecting  the defendant-tenant on the ground of default in paying rent and also  on the ground that the such premises are required  for his  own use and occupation.  The suit was posted for  final hearing on June 9, 1988  seven years after its institution. On  an  earlier  occasion,  the  defendant  had  filed   two interlocutory  applications, one under Order 14 rule  5  and the other under Order 6 rule 16 C.P.C. On 19th May, 1988 the City   Civil  Court  had  passed  an  order  on   the   said applications  observing that the said applications shall  be considered  at the final hearing of the suit.  According  to the defendant (as per his statement made in the  application filed  by  him for setting aside the  ex-parte  decree)  his advocate  advised  him that he need not be  present  at  the hearing  of  the suit on 9.6.1988, and thereafter  till  the applications filed by him under Order 14 rule 5 and Order  6 rule  16  C.P.C. are disposed of Be that as it may,  on  9th June,  1988,  the advocate for the defendant prayed  for  an adjournment   till   the  next  day.    It   was   adjourned accordingly.   On  10th June, neither the advocate  for  the defendant  nor the defendant appeared, with the  result  the defendant  was set ex-parte.  Hearing of the suit  was  com- menced  and  concluded  on 11th June, 1988.   The  suit  was posted for delivery of judgment to 13th June, 1988.  On 11th June,  1988,  an  application  was made  on  behalf  of  the defendant  stating the circumstances in which  his  advocate had  to  retire from the case.  This  application,  however, contained  no prayer whatsoever.  The suit was  decreed  ex- parte  on 13th June, 1988.  Thereafter the  defendant  filed the  application to set aside the ex-parte decree.  In  this application he referred to the fact of his filing two inter- locutory  applications  aforesaid, the order  of  the  court thereon passed on 19th May, 1988 and then stated "due to the advice   of  the  learned  advocate  on-record   that   your petitioner need not be present at the hearing of the suit on 9.6.1988 and thereafter till the disposal of the application filed  under Order 6 rule 16 and Order 14 rule 5  read  with Section  151  of the Code of Civil Procedure  in  the  above suit,"  the defendant did not appear before the  Court.   It was  stated that Mr. Ravindran the Principal Officer of  the defendant  Company  was out of town on that  date.   It  was submitted that because the defendant had acted on the  basis of  the  advice  given  by  the  advocate-on-record  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

defendant,  there was sufficient cause to set aside the  ex- parte  decree within the meaning of Order 9 rule  13  C.P.C. The Trial Court dismissed the said application against which an  appeal  was preferred by the defendant to  the  Calcutta High Court.  The appeal was heard by a 798 Division  Bench  and judgment pronounced in  open  court  on 8.7.1991 dismissing the appeal.  However, it appears, before the  judgment was signed by the learned Judges  constituting the  Division  Bench,  an  application  was  moved  by   the defendant for alteration or modification and/or reconsidera- tion  of  the said judgment mainly on the  ground  that  the defendants’  counsel  could not bring to the notice  of  the Division  Bench  the  decision of this Court  in  Rafiq  and another v. Munshilal and another, AIR 1981 SC 1400 and  that the  said  decision clearly supports the  defendants,  case. The counsel for the plaintiff opposed the said request.   He submitted  that  once the judgment was  pronounced  in  open court, it was final and that matter cannot be reopened  just because a relevant decision was not brought to the notice of the Court.  After hearing the counsel for both the  parties, the  Division Bench reopened the appeal on the  ground  that "technicalities should not be allowed to stand in the way of doing justice to the parties.’ The Bench observed that  when they disposed of the appeal, their attention was not invited to the decision of this Court in Rafiq v. Munshilal and that in  view of the said judgment they were inclined  to  reopen the  matter.   The Division Bench was of  the  opinion  that "after  a judgment is delivered by the High  Court  ignoring the  decision of the Supreme Court or in disobedience  of  a clear judgment of the Supreme Court, it would be treated  as nonest  and absolutely without jurisdiction....... when  our attention has been drawn that our Judgment is per  incuriam, it  is our duty to apply this decision and to hold that  our Judgment  was wrong and liable to be recalled." (We  express no opinion on the correctness of the above premise since  it is  not  put  in issue in this  appeal).   Accordingly,  the Division Bench heard the counsel for the parties and by  its Judgment and Order dated 3rd March, 1992 allowed the  appeal mainly relying upon the decision of this Court in Rafiq. In  this  appeal  Shri  Ganguli,  learned  counsel  for  the appellant/plaintiff  submitted  that the decision  in  Rafiq does not support the defendant’s case and that the  Calcutta High Court has erred in holding otherwise.  It is  submitted that  the  defendant  in  this case  is  a  private  limited company,  managed by persons who are not only  well-educated but are practical businessmen unlike the appellant in  Rafiq who was a rustic innocent villager placing his entire  trust in his advocate.  On the other hand, Shri Santosh Hegde, the learned counsel for the defendant/respondent submitted  that when the High Court has applied and acted upon a decision of this Court, it would not be proper to set aside their  order under Article 799 136   of   the   Constitution.   He   submitted   that   the defendant/company  implicitly  trusted  their  advocate  and acted  according to his advice and should not  be  penalised therefore. Since  the judgment under appeal is exclusively  based  upon the  decision  of  this Court in Rafiq it  is  necessary  to ascertain  what precisely does the said decision  say.   The appellant  Rafiq  had  preferred  a  second  appeal  in  the Allahabad High Court through an advocate.  His advocate  was not present when the second appeal was taken up for  hearing with the result it was dismissed for default.  The appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

then  moved  an  application  to  set  aside  the  order  of dismissal for default which was dismissed by the High Court. The  correctness  of the said order was questioned  in  this Court.   The matter came up before a Bench  comprising  D.A. Desai and Baharul Islam, JJ.  D.A. Desai J. speaking for the Bench observed thus:               "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 watch-dog of  the               advocate that the latter appears in the matter               when it is listed. it is no part of his job.’ It was then argued by the counsel for the respondent in that appeal  that  a practice has grown up in the High  Court  of Allahabad  among the lawyers to remain absent when they  did not  like  a particular bench and that the  absence  of  the appellant’s  advocate  in the High Court was  in  accordance with  the  said practice, which should  not  be  encouraged. While 800 expressing no opinion upon the existence or justification of such  practice,  the  learned Judge  observed  that  if  the dismissal  order  is not set aside "the only one  who  would suffer  would not be the lawyer who did not appear  but  the party  whose  interest he represented," and  then  made  the following further observations:               "The problem that agitates us is whether it is               proper  that the party should suffer  for  the               inaction, deliberate omission, or misdemeanour               of his agent.  The answer obviously is in  the               negative.   May be that the  learned  advocate               absented      himself     deliberately      or               intentionally.    We  have  no  material   for               ascertaining  that aspect of the  matter.   We               say nothing more on that aspect of the matter.               However,  we cannot be a party to an  innocent               party  suffering injustice merely because  his               chosen advocate defaulted." The  question is whether the principle of the said  decision comes  to  the rescue of the  defendant  respondent  herein. Firstly,  in  the  case  before us  it  was  not  an  appeal preferred  by  an outstation litigant but a suit  which  was posted  for final hearing seven years after the  institution of  the  suit.  The defendant is a private  limited  company having  its  registered  office  at  Calcutta  itself.   The persons  incharge  of the defendant-company are  not  rustic villagers nor they are innocent illiterates unaware of Court procedures.   Prior to the suit coming up for final  hearing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

on  9th June, 1988 the defendant had filed two  applications whereupon the Court ordered that they will be considered  at the time of the final hearing of the suit.  The  plaintiff’s case  no  doubt is that the said applications were  part  of delaying tactics being adopted by the defendant-tenants with a  view  to  protract  the suit.  Be that  as  it  may,  the defendant  thereafter  refused to appear before  the  court. According to the defendant, their advocate advised them that until  the  interlocutory  applications filed  by  them  are disposed of, the defendant need not appear before the  Court which means that the defendants need not appear at the final hearing  of the suit.  It may be remembered that  the  Court proposed to consider the said interlocutory applications  at the  final hearing of the suit.  It is difficult to  believe that  the  defendants implicitly believed  their  advocate’s advice.   Being educated businessmen they would  have  known that  non-participation  at the final hearing  of  the  suit would necessarily result in an adverse decision.  Indeed. we are not prepared to believe that such an advice was in  fact tendered by 801 the  advocate.  No advocate worth his salt would  give  such advice to his client.  Secondly, the several  contradictions in  his  deposition which are pointed out  by  the  Division Bench in the impugned order go to show that the whole  story is a later fabrication.  The following are the  observations made  in the Judgment of the Division Bench with respect  to the  conduct of the said advocate: "we found that  the  said learned  advocate  conducted  the  proceedings  in  a   most improper manner and that his absence on 10th June, 1988  and on subsequent date was not only discourteous but possibly  a dereliction  of  duty  to  his  client........  the  learned advocate  had forgotten his professional duty in not  making inquiry  to the Court as to what happened on 10th, 11th  and 13th June, 1988........ the learned advocate acted in a most perfunctory  manner in the matter and the  learned  advocate dealt  with  the matter in a most unusual manner.   We  have also  found that the said learned advocate had made  serious contradiction in the deposition before the court below.  The learned  advocate in his deposition stated that he  did  not file an application for adjournment on 9th June, 1988.   But from  the record it was evident that it was on the basis  of the  application  filed  on 9th June,  1988,  the  case  was adjourned  for  cross-examination  of  the  witnesses  whose examination  was called on the next date." The  above  facts stated in the deposition of the advocate show that he indeed made an application for adjournment on the 9th June, 1988 to enable him to cross examine the witnesses on the next  date. Therefore, his present stand that he advised his client  not to  participate  in the trial from and including  9th  June, 1988 onwards is evidently untrue.  We are, therefore, of the opinion  that  the  story set up by  the  defendant  in  his application  under Order 9 rule 13 is an  after-thought  and ought not to have been accepted by the Division Bench in its order  dated 3rd March, 1992  more particular when  it  had rejected  the  very  case  in  its  earlier  Judgment  dated 8.7.1991. The  advocate  is  the agent of the  party.   His  acts  and statements,  made  within the limits of authority  given  to him,  are the acts and statements of the principal i.e.  the party  who  engaged  him.   It  is  true  that  in   certain situations, the Court may, in the interest of justice, set a side a dismissal order or an ex-parte decree notwithstanding the negligence and/or misdemeanour of the advocate where  it finds that the client was an innocent litigant but there  is not such abso

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

lute rule that a party can disown its advocate at any time and seek relief.  No such absolute immunity  can be recognised.  Such an absolute rule would make the working of the system extremely difficult.  The observations made in Rafiq must be understood in 802 the  facts  and  circumstances of that case  and  cannot  be understood as an absolute proposition.  As we have mentioned hereinabove,  this  was an on-going suit  posted  for  final hearing after a lapse of seven years of its institution.  It was  not a second appeal filed by a villager  residing  away from the city, where the Court is located.  The defendant is also  not a rustic ignorant villager but a  private  limited company with its head-office at Calcutta itself and  managed by educated businessmen who know where their interest  lies. It is evident that when their applications were not disposed of  before  taking up the suit for final  hewing  they  felt piqued  and refused to appear before the court.  May be,  it was  part  of  their  delaying tactics  as  alleged  by  the plaintiff.   May  be  not.  But one thing is  clear   they ’chose to non-cooperate with the court.  Having adopted such a stand towards the Court, the defendant has no right to ask its indulgence.  Putting the entire blame upon the  advocate and  trying to make it. out as if they were totally  unaware of the nature or significance of the proceedings is a theory which  cannot  be  accepted  and  ought  not  to  have  been accepted. For the above reasons, the appeal is allowed.  The order  of the Division Bench of the Calcutta_High Court dated  33.1992 is set aside and its order dated 8.7.1991 is restored.   The company-defendant  shall bear the costs of the appellant  in this appeal which are assessed at Rs. 5,000. N.P.V.                              Appeal allowed. 804