IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.51155/2017 (GM-CPC) BETWEEN:
SHASHIKALA G. RAO, W/O S. GOVINDA RAO, AGED ABOUT 61 YEARS, R/AT NO.511, 41ST CROSS, 8TH BLOCK, JAYANAGAR, BENGALURU 560070.
... PETITIONER (BY SRI SHIVASHANKAR K., ADVOCATE) AND:
1. M. NAGARAJ, S/O MUNIYAPPA, AGED ABOUT 41 YEARS, 2. HEMA, W/O LATE NIRANJAN, R/AT 191-A, ITI LAYOUT, HOSAPALYA ROAD, YELLAKUNTE VILLAGE, BOMMANAHALLI, BENGALURU 560068.
... RESPONDENTS (BY SRI B.N. JAYADEVA, ADVOCATE FOR R1 AND R2) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE XXXI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BENGALURU [CCH-14] IN MISCELLANEOUS PETITION NO.688/2016 DATED 9.10.2017 VIDE AT ANNEXURE-J BY ALLOWING THIS W.P.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This is plaintiff’s writ petition against the order dated 09.10.2017 passed by the 31st Addl. City Civil and Sessions Judge, Bengaluru City, (CCH-14) allowing the Misc. Petition No.688/2016 with cost of `5,000/-, setting aside the ex-parte judgment and decree dated 30.06.2016 made in O.S.No.8432/2015 on the file the 31st Addl. City Civil and Sessions Judge, Bengaluru City, and directing both the parties to appear before the Trial Court.
2. The present petitioner/plaintiff filed suit in O.S. No.8432/2015 for permanent injunction restraining the defendants from interfering with the peaceful possession and enjoyment of the plaintiff’s suit schedule property. The defendants, though appeared through their counsel, did not file the written statement.
3. The Trial Court, considering the evidence of P.W.1 and documents Exs.P.1 to P.4, proceeded to decree the suit holding that, “though the defendants appeared through their counsel, they have not filed the written statement. The defendants have not challenged the testimony given by P.W.1. There is no reason to disbelieve the evidence of P.W.1, so also, the documents produced by the plaintiff”.
4. Aggrieved by the judgment and decree made in O.S.No.8432/2015, the defendants filed Misc. Petition No.688/2016 contending that, in the second week of August 2016, while going through the papers at home, the defendants noticed that they had not taken steps to be in touch with their Advocate in the suit and also not noted the progress of the case. Immediately, after realizing the same, they rushed to the office of their Advocate situated at No.17, Ist Floor, Sri Jayadeva Commercial Complex, 5th Main Road, Gandhinagar, Bangalore-560 009 and found that the office was locked. After enquiry, defendants learnt that their Advocate had shifted his office to No.1/4-3, 2nd Floor, I Main, Sujatha Complex, Gandhinagar, Bangalore- 560009. The defendants went there and found that the office was locked and the neighbours informed that the Advocate was busy with the house warming ceremony of his newly constructed house at his native place, Herakanavangala village, Ajjampura Hobli, Tarikere Taluk and as such, he was not attending the office for quite some time. The defendants efforts to reach him on his mobile phone also failed, as the same was inaccessible. It was further contended that, on enquiry, defendants came to know that the suit was decreed on 30.06.2016 and they applied for certified copy of the judgment and decree on 20.08.2016, obtained the same on 22.08.2016, and thereafter, filed miscellaneous petition to set-aside the ex-parte judgment and decree passed in the original suit. It was contended that, “non filing of the written statement and non appearance before the Court was due to bonafide reasons, as they had engaged the services of the advocate who was supposed to take care of the suit. They had trust in their advocate that he will take care of the case. After the judgment and decree, the defendants engaged another counsel and filed miscellaneous petition to set- aside the ex-parte judgment and decree passed in the suit”. The miscellaneous petition was opposed by the plaintiff/ decree holder.
5. The Trial Court, considering the entire pleadings, oral evidence of P.W.1 and the documentary evidence/ Exs.P.1 to P.8, allowed the Misc. Petition No.688/2016, with costs of `5,000/- holding that an opportunity should be given to the defendants, since the Trial Court passed ex-parte judgment and decree. Aggrieved by the said order, plaintiff has filed the present writ petition.
6. I have heard the learned counsel for the parties to the lis.
7. Sri Shivashankar.K. learned counsel for the petitioner /plaintiff vehemently contended that the impugned order passed by the Trial Court in Misc. Petition No.688/2016 is erroneous and contrary to the material on record. He further contended that, the defendants though engaged their counsel, did not file the written statement and not cross-examined P.W.1. Even though an opportunity was given, they have not availed the same. Therefore, the Trial Court, is not justified in setting aside the judgment and decree passed by the Trial Court. It is further contended that the petitioner/plaintiff is aged about 67 years and the defendants are unnecessarily dragging the matter, without there being any semblance of rights in respect of property in question. The Trial Court ought not to have set-aside the judgment and decree passed by the Trial Court. He further contended that the defendants came with a theory that they were not aware of the proceedings and dragged the matter for more than one year and ultimately the suit came to be decreed. Therefore, learned counsel sought to allow the writ petition by quashing the impugned order passed by the Trial Court.
8. Per contra, Sri Jayadeva.B.N. learned counsel, on taking notice to respondents/defendants, sought to justify the impugned order and contended that because of the mistake committed by the advocate who appeared on behalf of defendants, the defendants should not suffer. On account of shifting of his office and on account of house warming ceremony of newly constructed house at his native place, the advocate could not attend the case on every date of hearing. In the interregnum, defendants also were not aware of the proceedings, since they had engaged the counsel and trusted him. Since the defendants were not represented, the Trial Court passed ex-parte judgment and decree. The Trial Court, considering the evidence on record, set-aside the judgment and decree of the Trial Court, on the ground that it was ex-parte which is just and proper. Therefore, sought for dismissal of the writ petition.
9. Having heard the learned counsel for the parties, it is not in dispute that the plaintiff filed suit for permanent injunction in respect of the suit schedule property claiming that he is the owner in possession and enjoyment of the suit schedule property. Though the defendants appeared, did not file the written statement. Subsequently, they lost track of the case and ultimately, ex-parte judgment and decree came to be passed on 30.06.2016. Challenging the said order, the defendants filed Misc. Petition No.688/2016, contending that since their advocate shifted his office, they could not locate the office and thereafter, their counsel was busy with the house warming ceremony of the newly constructed house at his native place. Therefore, they could not contact their counsel. As such, they could not even appear before the Court and adduce their evidence. In the meanwhile, the suit came to be decreed ex-parte.
10. The Trial Court, considering the entire material on record and considering the evidence adduced and the documents Exs.P.1 to P.8, especially, invitation/Ex.P.2 and other documents and taking into consideration the evidence of defendant No.1, recorded a finding that, the judgment and decree passed by the Trial Court in O.S.No.8432/2015 was ex-parte and therefore, an opportunity should be given to the defendants to putforth their case. Accordingly, allowed the Misc.
Petition with cost of `5,000/- payable to the plaintiff by the defendants and directed both the parties to appear before the Trial Court.
11. By perusal of the entire material on record, it is clear that there is negligence on the part of the defendants on account of the faith they had in their advocate. It is the duty of the learned counsel who represented the defendants to appear before the Court and prosecute the case. Unfortunately, the learned counsel has failed to discharge his institutional duty. Because of the negligence of the counsel, party should not suffer. The Hon’ble Supreme Court, in the case of Rafiq and another vs. Munshilal and another reported in AIR 1981 SC 1400, at paragraph 3 held as under:
“3. 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 watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. May be we do not know, he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. 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. Maybe 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. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs.200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi.”
12. The litigants approach the Court with great expectations treating the Court as ‘temple of justice’. The advocates or the Presiding Officer/Judge of the Court should work as ‘Archakas’ of the temple. If an advocate does not discharge his duty, it results in injustice to the litigant. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by restoring to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
13. The Hon’ble Supreme Court while considering the provisions under Order IX Rule 13 in the case of Malkiat Singh and Another vs. Joginder Singh and Others, reported in (1998) 2 SCC 206, has held as under:
“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:-
"4. 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."
14. This Court in the case of Sri M. Nagesh Suvarna vs. Sri Narayana, reported in ILR 2016 Kar 4252, while considering the provisions of Order IX Rule 13 of Code of Civil Procedure has held that, rights of the parties in respect of immovable property cannot be deprived only on the ground of delay or technicality and it is always better to decide the matter on merits and parties should not suffer for the fault on the part of the Advocate.
15. This court in the case of Ansari Sakeenabi vs.
Maligi Modeensab, reported in ILR 1997 Kar 1909, held that whether decree passed on the basis of plaintiff’s evidence only, due to non-appearance of contesting defendant at subsequent stages and his failure to lead his evidence, is an exparte decree, this court held as under:
“8. No doubt, the plaintiff's suit was contested by defendant at its earlier stages and till the plaintiff's evidence was recorded, but he failed to appear on the subsequent dates of. hearing and remained absent of course for valid reason, when the suit was set down for his evidence. Then the suit was decreed by the trial court on the basis of plaintiff's evidence only. It is not the case that defendant remained absent in the suit after any portion of his evidence was recorded in which event alone the trial court could have disposed of the suit treating him as present as envisaged by Explanation to Rule 2 of Order 17, C.P.C. Read in the context of this Explanation, sub-clause (b) of Rule 3 of Order 17, C.P.C. makes the legal position clear that when, a party to the suit remains absent without leading any evidence, the trial court is enjoined by Rule 2. Order 17 to proceed to dispose of the suit in one of the modes stipulated in Order 9, C.P.C. As a necessary legal corollary it follows that any decree passed by the trial Court disposing of the suit on the basis of plaintiff's evidence only due to non- appearance of contesting defendant at subsequent stages in the suit and on his failure to lead his evidence, is an ex-parte decree against him and not a decree on merits. In view of this emerging legal position the decree in the instant case has to be treated as an ex-parte decree and not as a decree passed on merits. Therefore, the application under Order 9, Rule 13, C.P.C. made by the petitioner before the trial court in Mis. Case No. 4/89 seeking to set aside the decree in question was maintainable in law; and the trial court as well as the lower appellate court have clearly erred in taking the contrary view and passing the impugned orders dismissing the said application. As such, the revision is entitled to succeed.”
16. Admittedly, in the present case, defendants have trusted their counsel. It is the duty of the counsel to appear on every date of hearing. The impugned order indicates that because of the non institutional responsibility of the counsel, unnecessarily defendants have suffered. It is not the intention of the legislature while enacting the Code of Civil Procedure or other procedures to conduct the proceedings. It is the duty of every counsel to protect the interest of his client/s to the best of his ability. In the present case, learned counsel for the defendants has not discharged the institutional responsibility. The defendants also neglected their case and thereby, suffered an exparte decree. Therefore, the Misc. Court was of the view that an opportunity should be given to the defendants, and therefore, allowed the miscellaneous petition by imposing cost of `5,000/-.
17. Considering the facts and circumstances of the case and considering the advanced age of the petitioner/ plaintiff, this Court is of the considered opinion that the cost imposed by the Trial Court has to be enhanced from `5,000/- to `7,000/-, in order to do justice between the parties confirming the order setting aside the ex-parte judgment and decree.
18. In view of the above, the writ petition is disposed of modifying the impugned order dated 09.10.2017 passed in Misc. Petition No.688/2016, only insofar as the costs. The Cost imposed by the said Misc. Court is enhanced from `5,000/- to `7,000/- payable to the plaintiff, jointly by the defendants and their counsel Sri H.B.Rudresh, who represented the defendants in O.S. No.8432/2015 on the file of the XXXI Addl. City Civil and Sessions Judge, Bengaluru City. If the counsel for defendants who absented himself failed to pay the cost, the right to execute the order is reserved for the defendants represented by the present counsel. The Trial Court is also directed to initiate appropriate proceedings to recover the costs. Because of this type of irresponsibility exhibited by the learned counsel, the litigants are unnecessarily put to hardship. If the learned advocates do not discharge their duty and responsibility properly, the litigants will be made to suffer for no fault on their part and the Courts will be flooded with such litigations. This Court hopes and trusts that the new counsel engaged by the defendants will conduct the case vigilantly and discharge his institutional responsibility, in accordance with law.
Sd/- JUDGE kcm