1993 (2) TMI 335 - SC - Indian Laws

Summary

Issues Involved:

1. Setting aside the ex-parte decree under Order 9 Rule 13 of the Civil Procedure Code (CPC).
2. Application of the Supreme Court's decision in Rafiq v. Munshilal.
3. Conduct and advice of the advocate representing the defendant.
4. The principle of justice concerning the negligence or misdemeanour of an advocate.

Issue-wise Detailed Analysis:

1. Setting aside the ex-parte decree under Order 9 Rule 13 of the Civil Procedure Code (CPC):

The plaintiff filed a suit for ejecting the defendant-tenant on the grounds of default in paying rent and personal use. The suit was posted for final hearing on 9th June 1988, seven years after its institution. The defendant's advocate advised him that he need not be present until the applications under Order 14 Rule 5 and Order 6 Rule 16 CPC were disposed of. Consequently, neither the defendant nor his advocate appeared on 10th June, leading to an ex-parte decree on 13th June 1988. The defendant filed an application to set aside the ex-parte decree, citing the advocate's advice as sufficient cause under Order 9 Rule 13 CPC. The trial court dismissed this application, and the appeal to the Calcutta High Court was initially dismissed but later reopened and allowed based on the principle in Rafiq v. Munshilal.

2. Application of the Supreme Court's decision in Rafiq v. Munshilal:

The High Court reopened and allowed the appeal primarily based on the Supreme Court's decision in Rafiq v. Munshilal, which held that a party should not suffer due to the inaction or misdemeanour of their advocate. The Supreme Court in Rafiq emphasized that under the adversary legal system, the obligation of the party is to select and trust their advocate to handle the proceedings. The High Court applied this principle, considering the defendant's reliance on their advocate's advice.

3. Conduct and advice of the advocate representing the defendant:

The Supreme Court scrutinized the conduct of the defendant's advocate and found several contradictions in his deposition. The advocate had initially requested an adjournment on 9th June 1988 but later advised his client not to participate in the trial. The Division Bench noted the advocate's improper conduct and dereliction of duty, concluding that the story set up by the defendant was a fabrication. The Supreme Court found it difficult to believe that educated businessmen would implicitly trust such advice, knowing the adverse consequences of non-participation in the final hearing.

4. The principle of justice concerning the negligence or misdemeanour of an advocate:

The Supreme Court clarified that while the court may set aside a dismissal order or an ex-parte decree in the interest of justice, there is no absolute rule that a party can disown its advocate at any time and seek relief. The observations in Rafiq must be understood in the context of that specific case and cannot be applied as an absolute proposition. The defendant, being a private limited company managed by educated businessmen, chose to non-cooperate with the court. The Supreme Court concluded that the defendant had no right to ask for the court's indulgence after adopting such a stand.

Conclusion:

For the above reasons, the Supreme Court allowed the appeal, set aside the Division Bench's order dated 3rd March 1992, and restored its order dated 8th July 1991. The defendant-company was ordered to bear the costs of the appellant assessed at Rs. 5,000.