The deposition of a lawyer representing a party in a case is not privileged communication under Section 126 of the Indian Evidence Act 1872 if it does not relate to any communication made to the lawyer by the client or disclose any advice given by the lawyer to the client.

Reportable BY THE COURT:

Appellant-defendant has laid this appeal under Order 43 Rule 1(d) read with Section 104 of the Code of Civil Procedure (for short, ‘CPC’) assailing the order dated th of July 2013 passed by Addl. District Judge, Rajsamand, whereby its application under Order 9 Rule 13 read with Section 151 CPC for setting aside ex-parte decree dated 19th January 2006 was rejected.

Succinctly stated, the facts of the case are that respondent-plaintiff instituted a civil suit against appellant for recovery of a sum of Rs.1,60,155 before learned trial Court, wherein besides money decree he also prayed for relief of perpetual injunction. The suit was initially contested by appellant and its cause was pleaded by a lawyer but subsequently due to absence of appellant as well as its lawyer, at the threshold ex-parte proceedings were taken against it on 17.11.2005 and eventually the suit was decreed ex-parte on 17th of February 2006. For setting aside ex-parte decree, appellant company made endeavor by laying application under Order 9 Rule 13 read with Section 151 CPC on 10th of February 2009. The said application was preferred by appellant after delay of three years from the date of passing of ex-parte judgment and decree, therefore, an endeavor was made at its behest for seeking condonation of delay by way of laying application under Section 5 of the Limitation Act. In its application, the appellant company has inter-alia averred that on its behalf a lawyer was engaged, who was entrusted the brief, but of his own volition he has not appeared before the learned trial Court on 17.11.2005 and therefore the learned Court below proceeded ex-parte against the appellant and its right to file written statement was forfeited. Finally, the learned trial Court passed the ex-parte decree.

Appellant set out a specific case in its application that the lawyer representing their cause before the learned trial Court assured that as and when any assistance would be required by company, requisite information would be furnished to it but no such information was divulged by the counsel. With these averments, the appellant has pleaded that there were good and sufficient reasons for absence of the appellant on 17.11.2005 as well as on 19.01.2006. Attributing callousness and total apathy on part of the lawyer representing its cause, appellant has averred in the application that it came to know about the ex-parte judgment and decree on 6th of February 2009 and immediately requisite application for obtaining certified copy was filed and after obtaining certified copy on 7th February 2009, the application has been filed for setting aside ex-parte decree. For seeking condonation of delay in belated presentation of application under Order 9 Rule 13 CPC, appellant has pleaded the same facts. In support of both the applications, on behalf of appellant company, affidavit of its Manager (Law) was submitted.

The respondent-plaintiff contested the application for setting aside ex-parte judgment and decree and submitted its reply refuting all the averments. On behalf of respondent, a separate reply was also submitted to counter the averments contained in application under Section 5 of the Limitation Act. In reply, on behalf of respondent, it is pleaded with emphasis that appellant company had full knowledge about the proceedings in the suit and it was aware about passing of the ex-parte decree. The respondent has also submitted in the reply that being party to the litigation, it was obligation of the appellant to ascertain the status of the suit, which was filed against it, and by not doing so it has shown total callousness and negligence, which is hardly a ground for setting aside ex-parte decree. Respondent’s specific plea was that a litigant, who has shown apathy for its cause, cannot be allowed any latitude by the Court for its lapses. Elaborating the sequence of events to prove that appellant had knowledge about ex-parte proceedings against it an