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1996 JLJ 436
R.S. Garg, J.
Benibai (Smt.) v. Smt. Champabai
Misc. Appeal No. 507 of 1994; against the order passed by 4th Additional
Judge to the Court of District Judge, Sagar, in MJC No.3 of 1993; Decided
on 14.11.1995.
It is always the duty of a counsel before pleading no instructions to inform the party that for a particular reason he shall not be appearing in the case and may plead no instructions. The confidence deposed by parties in the counsel is most important. A person who is not present in Court pre-supposes that because of engagement of a counsel his interest would be properly looked after. It is the duty of a counsel to inform him before he proceeds to plead no instructions. If Shri Lokras had pleaded no instructions it was the duty of the Court also to inquire from Shri Lokras as to why and under what circumstances he was pleading no instructions. The Court cannot be a silent spectator to the scene which is staged in the Court. If a counsel declined to set up to his duty then the Judge is posed to the duty to then the judicial administration. The judicial conscience of the Judge should always be satisfied before he permits a lawyer either to withdraw or to retire from the case. [Para 7
(2) Judge -- permiting withdrawal of counsel without asking any reason -he is virtually violating the principle of justice.
It does not appear from the proceedings that the learned Judge had taken all necessary steps to ensure that the counsel had sufficient reason not to appear for the party who engaged him or to plead no instructions. If a Judge in disregard of duties permits a lawyer to withdraw from the case then he is virtually violating the principle of justice. A party who deposes confidence and relies on counsel is entitled to be under the belief that his interest would be looked after properly by the counsel. A Judge ordinarily should not permit a lawyer to plead no instructions unless the lawyer satisfies the judicial conscience of the Court that for the compelling reasons he was posed to plead no instructions.
[Para 7
(3) Civil P.C., 1908 -- O.9 R.13 -- setting aside the ex parte decree -applicant residing for away from the Court -- running in advanced age -- counsel duly engaged but he pleaded no instructions without any prior intimation -applicant himself not aware of any date -- sufficient cause made out. 1994 (1) MPWN 120, 1977 (II) MPWN 492 and 1979 (II) MPWN 126 referred to. AIR 1982 SC 1249 and AIR 1993 SC 1182 followed. [Paras 7 & 8
¼1½ vf/koDrk & ekeys esa milatkr dkmUlsy }kjk vuqns‘k ugha gksus dk vfHkopu & ,sls vuqns‘k ugha gksus dk dkj.k U;k;ky; dks Kkr djk;k tkuk pkfg, & U;k;ky; dks Hkh dkj.k dh tk¡p djuk pkfg, & dkmUlsy dk drZO; gS fd vuqns‘k ugha gksus dk vfHkopu djus ds igys vius eqofDdy dks lwfpr djsA
dkmUlsy dk lnSo ;g drZO; gS fd vuqns‘k ugha gksus dk vfHkopu djus ds iwoZ og i{kdkj dks bfÙkyk djs fd og fdlh fof‘k"V dkj.k ls og ekeys esa milatkr ugha gksxk vkSj vuqns‘k ugha gksus dk vfHkopu dj ldrk gSA i{kdkjksa }kjk dkmUlsy esa vfHkiq"V fo‘okl lokZf/kd egRoiw.kZ gSA U;k;ky; esa gkftj ugha gksus okyk O;fDr vis{kk djrk gS fd dkmUlsy dh fu;qfDr ds dkj.k mlds fgr dh ns[kHkky mfpr :i ls gksxhA dkmUlsy dk ;g drZO; gS fd vuqns‘k ugha gksus dk vfHkopu djus ds iwoZ og mls bfÙkyk djsA ;fn Jh yksdjl ls ;g tk¡p djrs fd os D;ksa vkSj fdu ifjfLFkfr;ksa esa vuqns‘k ugha gksus dk vfHkopu dj jgs gSaA U;k;ky; esa vfHkuhr gks jgs n`‘; esa U;k;ky; ewd n‘kZd cu dj ugha dj ldrkA ;fn dksbZ dkmUlsy vius drZO; ds fuokZg ls badkj djrk gS rc U;k;k/kh‘k ds le{k U;k; ç‘kklu ds çfr drZO; mifLFkr gks tkrk gSA fdlh odhy dks ekeys ls çR;kgj.k vFkok fuo`fÙk vuqKkr djus ds iwoZ lnSo U;k;k/kh‘k dh U;kf;d var‘psruk dk lek/kku dk lek/kku gks tkuk pkfg,A ¿iSjk 7
¼2½ U;k;k/kh‘k & fcuk dkj.k iwN dkmUlsy dks çR;kgj.k dh vuqKk & mlds }kjk oLrqr % U;k; ds fl)karksa dk vfrØe.k gSA
dk;Zokgh ls ;g çdV ugha gksrk fd fo}ku U;k;k/kh‘k] ;g lqfuf‘pr djus ds fy, fd bl i{kdkj dh vksj ls milatkr u gksus ds fy, ftlus mls fu;qDr fd;k Fkk vFkok vuqns‘k ugha gksus dk vfHkopu djus ds fy, dkmUlsy dks i;kZIr dkj.k Fkk] lHkh vko‘;d dne mBk, FksA ;fn dksbZ U;k;k/kh‘k] drZO; dh vogsyuk djrs gq,] fdlh odhy dks ekeys ls çR;kgj.k vuqKkr djrk gS] rc og oLrqr% U;k; ds fl)karksa dk vfrØe.k djrk gSA dksbZ i{kdkj tks dkmUlsy ij fo‘okl vfHkiq"V djrk gS vkSj mldk voyac ysrk gS] bl çrhfr dk gdnkj gS fd dkmUlsy }kjk mlds fgr dh lE;d~ :i ls ns[kHkky dh tk,xhA U;k;k/kh‘k dks lkekU;rrk fdlh odhy dks vuqns‘k ugha gksus dk vfHkopu djuk vuqKkr ugha djuk pkfg, tc rd fd odhy U;kf;d var‘psruk dk lek/kku ugha dj nsrk gS fd foo‘kdkjh dkj.kksa ls mls vuqns‘k ugha gksus dk vfHkopu djuk iM+ jgk gSA ¿iSjk 7
¼3½ flfoy çfØ;k lafgrk] 1908 & vk-9 fu-13 & ,di{kh; fMØh dh vikfLr & vkosnd dk fuokl U;k;ky; ls cgqr nwj & vf/kd vk;q & dkmUlsy lE;d :i ls fu;qDr fdarq mlus fcuk iwoZ bfÙkyk ds vuqns‘k ugha gksus dk vfHkopu fd;k & vkosnd dks Lo;a fdlh rkjh[k dk Hkku ugha & i;kZIr dkj.k fl)A 1994¼1½ e-ç- ohDyh uksV~l 126 fufnZ"VA , vkb vkj 1982 ,l lh 1249 rFkk , vkb vkj 1993 ,l lh 1182 vuqlfjrA ¿iSjk 7 rFkk 8
1. The appellant/defendant who was proceeded exparte in C.S. No. 1-A of 1987 by the Court of I Addl. Judge to the Court of District Judge, Sagar during the pendency of this suit itself on 16.10.90 moved an application u/o. IX rule 7 C.P.C. for setting aside the exparte order which was passed against her on 27.6.90. The said application was hotly contested by the plaintiff who had by then produced the evidence and was awaiting the judgment.
2. After hearing the parties, the learned trial Court came to the conclusion that as the case was fixed for delivery of judgment, nothing further was remained to be done by the parties, and application u/s. IX rule 7 would not lie. It, however, gave liberty to the defendant that the grounds raised in support of the application u/o. IX rule 7 C.P.C. can be raised in an application u/O. IX rule 13 C.P.C. Immediately after the ex parte judgment was delivered, the applicant/appellant moved an application u/O. IX rule 13 C.P.C. which was registered as M.J.C. No.3 of 1993. The said Court i.e. IV Additional Judge to the Court of District Judge, Sagar issued notice of the said application, to the plaintiff/respondent who again opposed the application. The appellant, in the application, contended that the Court proceedings, recording the presence of Shri Lokras were wrong. The appellant being sick and infirm and as she was residing at Jabalpur, she was unable to attend the Court. She also submitted that she was not knowing the dates, therefore, she could not make proper arrangements. The plaintiff/respondent, in reply, inter alia contended that the defendant although was negligent in conduction of the proceedings. There was no sufficient cause, the correctness of the Court proceedings could not be challenged and neither the appellant was sick or infirm nor there existed any sufficient cause in favour of the appellant for setting aisde the exparte decree.
13. The parties led the evidence. After considering the evidence and hearing the parties, the learned trial Court came to the conclusion that the appellant could not make out a sufficient cause for setting aside the ex parte decree. The trial Court also held that the correctness of the Court proceedings could not be doubted and the appellant although the proceedings was negligent. The said order was passed on 23.12.92. Being aggrieved by the said order the appellant has preferred this appeal u/O. XLIII rule 1-D of the Code of Civil Procedure.
4. Shri Ruprah, learned counsel for the appellant contended that the appellant could make out sufficient cause for her non-appearance. He also submitted that after the case was transferred from the Court of I Additional Judge to the Court of District Judge, Sagar to the Court of IV Addl. Judge no proper notice was given to the appellant and also when the case was transferred from the Court of III Additional Judge to the Court of District Judge, Sagar to the Court of IV Additional Judge, neither a notice was given to the appellant's counselor to the appellant nor the counsel Shri Lokras appeared for the appellant. He also submitted that the appellant who is an old and infirm woman of80 years was not required to attend on every date and if her counsel pleaded no instructions then she cannot be penalized.
5. In reply to the above arguments, Shri Agrawal contended that the correctness of the Court proceedings cannot be challenged by party in collateral proceedings unless the same are put in issue before the same judge. He also submitted that the conduct of the appellant before she was proceeded exparte, would be material. He further submitted that there is no evidence on record to show, suggest or prove that she was sick, nor even the medical certificates have been filed in support of the alleged sickness.
6. The Supreme Court had an occasion to consider the question regarding the challenge to the Court proceedings. In State of Maharashtra v. Ramdas Shrinivas Naik and another (AIR 1982 SC 1249) the Supreme Court
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