When a counsel pleads no instructions, it is the duty of the court to issue notice to the party concerned.

S.K.Jain, J.

1. One Sucha Singh was murdered. Didar Singh and Kulwant Singh were arrested, challaned, charged and tried under Section 302 of the Indian Penal Code for the said murder. The learned Sessions Judge, Jalandhar acquitted Kulwant Singh but convicted and sentenced Didar Singh vide his judgment and order dated 27.10.1977. On appeal this Court acquitted Didar Singh also. The widow of Sucha Singh and others filed civil suit against Didar Singh claiming compensation for the murder of Sucha Singh. Mr. B. S. Cheema, Advocate was defending the suit on behalf of the defendant Didar Singh. On 26.7.1980, the said Advocate pleaded no instructions and, therefore, vide his judgment and decree dated 27.8.1980, Sub Judge 1st Class, Nawashahar, decreed the suit for recovery of Rs. 67,200/- ex parte. On 15 6 1982, the defendants filed an application for setting aside the ex parte decree which was dismissed on 6.9 1984. Appeal against that order failed on 26.7.1985. That order was challenged in Civil Revision No. 2424 of 1985 which was dismissed in limine on 24.10.1985 by this Court. Special Leave Petition No. 852 of 1991 was filed against that order. The Supreme Court remanded the case back to this Court for disposal by passing a speaking order. This is how this revision petition has coma before me for hearing.

2. Learned counsel for the petitioner has taken me through the statement of Mr. B. S. Cheema, Advocate who was examined during the hearing of the application for setting aside ex parte decree as RW 1 on behalf of the plaintiffs-respondents He has stated that he was engaged by the defendants to defend the suit and he continued appealing upto 26.7.1980 when he pleaded no instructions. The suit was decreed ex parte against the defendants.

3. Sole argument advanced by the learned counsel for the petitioners is that in this case when the counsel for Didar Singh defendant had pleaded no instructions, it was the duty of the Court to issue notice to the defendant. In support of this argument he has relied upon the ratio laid down in Tahil Ram Issardas Sadarangani v. Ram Chand Issardas Sadarangani, A. I. R. 1993 S.C. 1182.

4. Learned counsel for the respondent submits :-

(i) that immediately after the ex parte decree was passed on 27.8.1980, limitation had started running against Didar Singh but be did not choose to file an application for setting aside the ex parte decree for a long period of 1 1/2 years, during his life time. Therefore, the application for setting aside ex parte filed by his legal representatives who had stepped into his shoes was hopelessly time barred ;

(ii) that in the Courts below, the case of the appellants herein was that Didar Singh had not authorized Mr. B. S. Cheema, Advocate to defend the suit and, therefore, his statement, pleading no instructions, was not binding on Didar Singh and that plea was answered in negative by the learned trial Court and his finding was affirmed by the learned first appellate Court and now in this revision petition, the appellants could now be allowed to take all together a new point for the first time to the effect that where the counsel for a party pleads no instructions, it is duty of the Court to issue notice to the party concerned.

5. I have given a thoughtful consideration to the rival arguments. It is true that normally a party is not allowed to take all together a new plea for the first time in the High Court but it is now well settled that a legal plea can certainly be taken at the Supreme Court stage.

6. The question as to whether the Court is bound to issue notice to a party whose counsel pleads no instructions or not is purely a question of law and certainly be raised for the first time at the High Court level.

7. Now on the question as to whether the ex parte decree passed on the basis of the statement of the learned counsel for the defendants pleading no instructions, was sustainable or not.

8. The lower appellate Court has rightly recorded that there is no e