Shibu V.K. v. Shyju V.K.

The issue raised in this original petition is whether a court, before which an Advocate reports “no instructions” from his client, must issue notice to the party who entrusted the said Advocate to appear before proceeding further with the matter.

2. The petitioner is the 9^th defendant in a suit for partition. He is the son of the deceased 3^rd defendant. The petitioner and his father filed a joint written statement. According to him, there was no sitting on 09.07.2019, and the case was re-posted for evidence to 11.07.2019. On 11.07.2019, the counsel for the petitioner did not represent the case, and the petitioner’s evidence was closed. On 17.07.2019, the petitioner filed IA No. 1255 of 2019 to re-open the evidence, stating that his counsel was engaged in another court. The petition was allowed on 20.07.2019, and the case was posted to 24.07.2019 for evidence. On that day, the petitioner was set ex parte since his counsel reported “no instructions”. On 31.10.2019, an ex parte decree was also passed against the petitioner. On 19.11.2019, I.A. No. 2174 of 2019 was filed, praying to set aside the ex parte decree. According to the petitioner, he was undergoing treatment for an injury caused by a fall and could not meet his lawyer, which led to his lawyer reporting “no instructions” on 24.07.2019. The trial court dismissed the application for setting aside the ex parte order. An appeal filed against the order of the trial court was dismissed by the First Appellate Court. The petitioner has hence filed this original petition.

3. The petitioner has relied on the judgments of the Hon’ble Supreme Court in Malkiat Singh & Anr. v. Joginder Singh & Ors. [(1998) (2) SCC 206], Y.P.Lele v. Maharashtra State Electricity Distribution Co. Ltd. & Ors. [(2023) SCC OnLine SC 997] and B. Janakiramaiah Chetty v. A.K. Parthasarthi & Ors. [(2003) 5 SCC 641], and the judgments of two Division Benches of this Court in Jayalakshmi v. Avara [2003 (2) KLT 901] and Deepak v. George Philip & Ors. [2006 (4) KLT 369] to contend that, where a party is not present before the Court, there is a duty cast on the Court to issue notice to the parties in case the counsel reports he has “no instructions”. It is submitted that in the case on hand, neither has the Court issued any notice to the petitioner nor does it appear from the order that the Court had enquired with the counsel as to whether he had informed his client about his withdrawing the vakalath.

4. In Malkiat Singh (supra), the Hon’ble Supreme Court held as follows:

“6. 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 8.12.1992.

7. 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 the 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 the party in person was not at fault and as such should not be made to suffer.”

5. The Court held that, in the interest of justice, issuance of a notice was required and if that is not done, then the application for setting aside the ex parte order ought to have been allowed since the party cannot be said to be at fault and they should not suffer. In holding so, the Hon’ble Supreme Court relied on a previous judgment in Tahil Ram Issardas Sadarangani & Ors. V. Ramchand Issardas Sadarangani & Anr. [(1993) Suppl. 3 SCC 256]. In Y.P.Lele (supra), a more recent decision, the Hon’ble Supreme Court held that once the counsel withdrew his Vakalatnama, in the normal course, the trial court ought to have issued notice to the defendants to engage another counsel. The Apex Court held that the trial court committed an error in proceeding to decide the case ex parte. The Apex Court also held that after the trial court had later, in its wisdom and discretion, allowed an application under Order IX Rule 13 of the Code of Civil Procedure (CPC), the High Court ought to have refrained from interfering with that order which advanced the cause of justice, by affording opportunities to both the parties so that the suit could be decided on merits. Thus, there is a categorical pronouncement that failure to issue notice, once a counsel has withdrawn his vakalath, is an error committed by the trial court and an application under Order IX Rule 13 CPC ought to be allowed in such cases. In Janakiramaiah (supra), the Hon’ble Supreme Court considered the effect of the Explanation to Order XVII Rule 2 CPC and held, that there is a positive purpose in the legislative expression of the words “where the evidence or a substantial portion of the evidence of a party”, which obviously means that the evidence on record is sufficient to substantiate the absentee party’s stand and for disposal of the suit and the absentee party is deemed to be present for this obvious purpose. The submission of the counsel for the petitioner is that unless a situation as warranted in the Explanation is present, the court should not have proceeded to dispose of the suit by setting the petitioner ex parte. In Jayalakshmi (supra), a Division Bench of this Court followed the decision in Malkiat Singh (supra) and held that a counsel can report “no instructions” to the Court when the case comes up for hearing, after he previously informs the party, and in such cases the party cannot wriggle out of the situation and contend that notice should be sent. The Court further held that in a case where the party is not informed about the action taken by the counsel, then the Court has a duty to send notice. The Court also observed that the counsel can inform the Court that a registered notice was sent and produce a copy of the notice. That was a case in which there was a delay of 335 days in filing the petition to set aside the ex parte decree. In the case at hand, the application was filed on 19.11.2019, within 19 days of the ex parte decree. A learned Single Judge of this Court had considered the observations in Jayalakshmi (supra) and had referred a case to a Division Bench for clarification regarding the procedure or course of action that a Court should adopt when counsel reports “no instructions” and whether the Court is invariably bound to issue fresh notice to the litigants before proceeding with the case further. The Division Bench considered the reference in the decision reported in Deepak S. (supra). The Division Bench referred to the decisions in Malkiat Singh (supra) and the decision in Tahil Ram Issardas Sadarangani (supra) and held that those were cases where the Advocate had reported no instructions without informing the client. The Division Bench answered the reference by stating that no mandatory rule or rule of universal application is prescribed in Jayalakshmi (supra) that whenever counsel reports ‘no instructions,’ fresh notice should be issued. In view of the law laid down in Y.P.Lele (supra), this Court need not go any further.

6. A reading of the above decisions would show that the requirement primarily is that the party whose counsel has reported “no instructions” should be put on notice of that fact either by his counsel or by the court, and it is not proper to proceed against him ex parte without informing him about the same. The purpose is apparent; that a decision should be on the merits of the case, rather than on default, and that too for no fault of the party.

7. The counsel for the respondent submitted that there was no justification for the petitioner being absent on the day on which the case had been posted for evidence. It is submitted that so long as he had no proper explanation for his absence, he cannot take advantage of the fact that his counsel had reported “no instructions” without informing him, as a reason for setting aside the ex parte decree. The counsel submitted that even on an earlier occasion the petitioner was not present, and his evidence had to be closed. It is hence submitted that the attempt was to drag the case without any proper justification. The counsel submitted that in the affidavit in support of the petition to set aside the ex parte decree, there is no mention of want of notice from the counsel. The counsel also submitted that the final decree in the suit has already been passed and hence nothing survives in the case. The counsel for the petitioner submitted that the final decrees have already been appealed against and have not become final. It is submitted that he had valid contentions in the suit based on a Will executed, and such contentions could not be agitated before the court on merits, which has resulted in the preliminary decree. It is pointed out that no evidence had been let in by either the plaintiffs or the defendants, as can be seen from the ex parte decree.

8. The arguments put forward by the counsel for the respondents cannot be sustained. In the judgment in Y.P.Lele (supra), the Hon’ble Supreme Court found fault with the High Court for having interfered with an order setting aside the ex parte decree, particularly since the order advanced the cause of justice by affording opportunities to both sides to have a decision on merits. In the said judgment, the court has specifically held that the Explanation to Rule 2 of Order XVII CPC could not be invoked in a case where the defendant had not led any evidence at all, and the explanation is only to record the presence of that party alone who had led evidence or substantial evidence and thereafter failed to appear. In Malkiat Singh (supra), the Hon’ble Supreme Court had specifically said that in a fact situation where the trial court had admittedly not issued any notice to the party after their counsel had reported no instructions, the court should have allowed the application for setting aside the ex parte and proceeded from the stage when the counsel had reported “no instructions”. In Tahil Ram Issardas Sadarangani (supra), the Supreme Court held that interests of justice required that a fresh notice of actual hearing should be sent to the parties in such cases. The judgment in Deepak (supra) cannot be understood as taking a different view and has only distinguished the judgment in Jayalakshmi (supra) to the extent that in every case it cannot be presumed that “no instructions” were reported by the counsel without informing his client, and hence it cannot be laid down as a general rule that the court was obligated to issue notice in all cases.

9. In the case at hand, the ex parte judgment shows that the petitioner and his father had filed a written statement and had put forward a Will executed by the predecessor, late Sri.Chandu and registered as Document No.21 of 1985 with respect to the property. Since the petitioner was set ex parte and his father was no more, the issue regarding the Will was never gone into by the trial court. It is also clear from the judgment that no oral evidence was adduced by the plaintiff as well as the defendants, and no documents had been marked by the defendants. In fact, the court has observed that in the absence of contra evidence, there is absolutely nothing before the court to substantiate the contentions put forward in the written statement and in those circumstances, it was held that the plaintiff has established that he is a coparcener and was entitled to get right by birth over the plaint B schedule property. It would appear from the records that on 24.07.2019 the counsel for the petitioner and defendants 12 to 15 had reported no instructions and filed a memo to that effect, and that the evidence was closed and the case was posted for hearing. There is nothing to suggest that the court had enquired from the counsel as to whether the counsel had informed his client about the fact that he was withdrawing his vakalatnama. It is also admitted that the court had not issued any notice to the parties. The evidence of the plaintiff alone had been closed, that too without any oral evidence. Going by the law laid down in the above-referred judgments, this is a fit case where the application for setting aside the ex parte decree ought to have been allowed by the court and a decision arrived at on merits.

10. In the result, the original petition is allowed. Ext.P7 judgment in C.M.A.No.56 of 2021 on the file of the Additional District Court-IV, Kozhikode and Ext.P5 order in I.A.No.2174 of 2019 in O.S.No.162 of 2104 on the file of the Additional Sub Court- III Kozhikode are set aside. I.A.No.2174 of 2019 on the file of the Additional Sub Court-III, Kozhikode is allowed. The ex parte decree passed on 31.10.2019 is set aside. The trial court is directed to hear and dispose of the suit afresh.