1. Suit for specific performance of land sale agreement — ex-parte decree — application to set aside decree and condone delay. (Para 2 )
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1996 Supreme(SC) 1008
1996(5) Supreme 721
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Sushila Narahari & Ors. -Appellants
versus
Nanda Kumar & Anr. -Respondents
Civil Appeal No. 9480 of 1996
(Arising out of SLP (C) No. 3189/96)
Decided on 8-7-1996
Counsel for the Parties :
For the Appellant : M.A. Krishna Moorthy, Advocate.
For the Respondents : Dr. A. Francis Julian and A. Mariarputham, Advocates.
Important Points
IMPORTANT POINT
Where during trial of suit counsel for defendant withdrew his vakalatnama without notice to client, it is sufficient ground to set aside ex-parte decree.
Where during trial of suit counsel for defendant withdrew his vakalatnama without notice to client, it is sufficient ground to set aside ex-parte decree.
Subject
Civil Law - Ex Parte Decree
Act Referred
Headnote
Civil Procedure Code, 1908-Order 9, Rule 13-Application to set aside ex-parte decree in specific performance suit-Applicant s counsel had withdrawn his vakalatnama during trial of suit without notice to applicant-It was advocate s dereliction of duty to inform his client by registered post if there was any non-cooperation-Delay of 40 days in filing application was liable to be condoned in the circumstances-Ex-parte decree is also liable to be set aside. (Para 3)
Legal Category Hierarchy
Table of Contents
2. Appellants sought condonation of delay and setting aside of ex-parte decree on grounds of advocate's negligence and failure to notify. (Para 2 , 3 )
3. Advocate derelicted duty by failing to notify client of non-cooperation and withdrawing vakalatnama without notice, justifying the delay in filing the application. (Para 3 )
4. Delay in applying to set aside an ex-parte decree may be condoned if the default was caused by the advocate's failure to notify the client. (Para 3 )
5. Appeal allowed — delay condoned — ex-parte decree set aside — trial court directed to allow evidence and dispose of the matter expeditiously. (Para 3 )
6. Does an advocate's failure to notify a client justify condonation of delay in setting aside an ex-parte decree?
Yes, if the advocate derelicts their duty by failing to inform the client of non-cooperation or withdrawing the vakalatnama without notice, the court may find the application for condonation of delay justified. (Para 3 )
7. What remedy is available when a suit is decreed ex-parte due to an advocate's negligence?
The aggrieved party may apply to condone the delay and set aside the ex-parte decree, allowing them the opportunity to cross-examine witnesses and adduce evidence. (Para 3 )
ORDER
Leave granted.
2. We have heard learned counsel on both sides.
This appeal by special leave arises against the order of the learned single Judge of the High Court made on February 14, 1994 in CRP No. 306/94. The suit for specific performance of agreement dated January 29, 1986 for the sale of 4840 sq. ft. of land in Madras city, laid by the respondent, was decreed ex-parte. The appellants had filed an application to set aside the ex-parte decree which was dismissed by the trial Court and confirmed by the High Court in revision. Thus, this appeal by special leave.
3. A regarding of the facts leaves us with no doubt that the advocate has derelicted his duty to inform the client by registered post if there was any non-cooperation on behalf of the appellants. Consequently, when the suit had come up for trial, he has withdrawn his vakalatnama without notice to the respondents. The trial Court set the appellants ex-parte and decreed the suit for specific performance. The application for condonation of delay of 40 days was filed. The Court refused to condone the delay. In view of the above, we find that she is well justified in filing the application with the delay. The delay is accordingly condoned. The ex-parte decree is set aside. The trial Court is directed to give opportunity to the appellants to cross-examine the witness examined by the respondents of the suit and also adduce evidence on her behalf. The trial Court is further directed to dispose of the matter as expeditiously as possible, preferably within one year from the date of receipt of the copy of the order.
The appeal is allowed. No costs.
Appeal allowed.
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Parallel Citations of other Journals :
Sushila Narahari & Ors. v. Nanda Kumar & Anr., 1996(5) Supreme 721 : JT 1996(6) SC 727 1996(5) SCC 529
