THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.1155 of 2009 01.12.2009 Between: V.Suthakeerthi, S/o.Late V. Papaiah And another … Appellants AND V.Govardhan, S/o.Late Chandraiah And others … Respondents THE HON’BLE SRI JUSTICE V.V.S. RAO AND THE HON’BLE SRI JUSTICE B.N.RAO NALLA CIVIL MISCELLANEOUS APPEAL No.1155 of 2009 JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) This miscellaneous appeal is by unsuccessful defendants 2 and 3. Their application being I.A.No.1913 of 2007 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (CPC) to set aside ex parte decree dated 27.12.2006 in O.S.No.964 of 1997 was dismissed by the Court of Principal Senior Civil Judge, Ranga Reddy District, L.B. Nagar, Hyderabad. Assailing the same, they filed instant appeal. The parties in this order are referred to by their status in the suit. Though the matter is at the interlocutory stage, as respondents have already filed caveat and are represented by counsel, the matter has been heard finally and is being disposed of, after hearing the Counsel for both the parties. Respondents filed the suit seeking partition and separate possession of plaint A schedule properties consisting of agricultural lands in six survey/field numbers situated at Malkajgiri and Keesara Mandals and plaint B schedule property consisting of a house situated at Yapral village. Their case is that the suit schedule properties originally belonged to Vasugoni Rajaiah, who had two sons, Papaiah and Chandraiah. Plaintiffs are sons of Chandraiah and defendants are sons of Papaiah. After death of Rajaiah, suit lands were cultivated jointly and immediate predecessors of plaintiffs and defendants lived in plaint B schedule property. Some time in 1997, defendants allegedly alienated a portion of suit lands. The plaintiffs objected for the same. There was a meeting in the presence of community elders when partition was suggested. Defendants refused, and therefore, the suit was filed on 23.11.1997 for partition and separate possession of suit schedule properties and for allotment of half share to plaintiffs. Defendants opposed the suit. The main defence raised was that suit schedule property was streedhana property of Tulasamma, mother of defendants and that the same is not joint family property. They also alleged that during his life time, their father, Papaiah, purchased agricultural lands admeasuring Acs.43.14 guntas and his name alone was entered in the revenue records. After demise of their father, defendants sold about Rs.21.04 guntas to discharge the debts and the remaining extent of Acs.9.23 guntas was mutated in the name of defendants. The suit house also belongs to Tulasamma, who constructed the same after obtaining building permission from Yapral Panchayat. After formation of Alwal Municipality, the house was assessed to property tax in 1988 and after death of their mother, their names were mutated. During the pendency of suit, fourth defendant was impleaded. However as fair copy of amended plaint was not filed, the Court below dismissed the suit for default. Thereafter, the plaintiffs filed an interlocutory application to set aside the order dismissing the suit for default. As there was delay of 213 days in filing such application, plaintiffs also moved I.A.No.1305 of 2002 to condone the delay. The same was allowed on 07.2.2003. Thereafter the matter was coming up for trial. The defendants were set ex parte. The affidavit filed in lieu of chief examination of P.W.1 was taken on record and Exs.A1 to A20 were marked. On 27.12.2006, the trial Court ex parte passed preliminary decree. Plaintiffs then filed I.A.No.776 of 2007 under Order XX Rule 18 of CPC praying for final decree by dividing the suit schedule property by metes and bounds and for delivery of separate possession. At that stage, defendants filed I.A.No.479 of 2002 seeking condonation of delay of 13 days in filing application under Order IX Rule 13 of CPC to set aside ex parte decree. The said application was allowed on 19.8.2009. The other application being I.A.No.1913 of 2007 was opposed by plaintiffs contending that defendants were not diligent in prosecuting the case, that they were trying to prolong the litigation and that they had no knowledge about order of the Court and ex parte decree is not correct. The trial Court considered rival contentions and by impugned order dated 16.9.2009 dismissed the I.A.No.1913 of 2007. Learned Counsel for appellants/defendants submits that when the Court below set aside the order dismissing the suit for default, their Counsel did not inform them about the same and that the whereabouts of Counsel are not known. Therefore, the appellants were not aware of the ex parte decree. According to learned Counsel, when defendants came to suit schedule property in February 2007, they came to know about ex parte decree and immediately filed the application for setting aside the same. He also submits that defendants are disputing the very allegation that plaint schedule property is joint family property, as the same is purchased by the mother of defendants. According to learned Counsel, when there are serious inter se property disputes and the parties have shown sufficient cause for their absence, the Court should set aside ex parte decree on terms especially when the absence is not due to negligence or indelligence. He also submits that when the application for condonation of delay is allowed on the ground that there was sufficient reason for their absence, dismissal of application under Order IX Rule 13 of CPC is erroneous. He placed reliance on Rafiq v Munshilal[1], Tea Auction Ltd v Grace Hill Tea Industry[2] and Rabindra Singh v Financial Commissioner, Cooperation, Punjab[3]. Learned Senior Counsel for respondents/defendants submits that when the plaintiffs moved application specifically alleging that their counsel did not inform about the restoration of suit and failed to prove the same, they must fail in their application under Order IX Rule 13 of CPC. He nextly contends that allegation made by other side that whereabouts of Counsel are not known, is urged for the first time before this Court, and therefore, it cannot be taken into consideration. He placed reliance on Nilakantha Sidramappa Ningashetti v Kashinath Somanna Ningashetti[4] and East India Hotels Ltd v Agra Development Authority[5] in support of the contention that notice to Counsel is presumed to be notice to the party, and therefore, the plea cannot be accepted. The background of the case and rival contentions require the only point that arise for consideration, namely, whether the defendants made out a case to show that they were prevented by sufficient cause from appearing when the suit was called for hearing and decreed ex parte? The relationship between the parties is not disputed. There is also no dispute that plaintiffs and defendants are residents of Yapral village. There is also no dispute that plaintiffs filed suit for partition of plaint A and B schedule properties, which is being opposed by defendants on the ground that property was purchased by their parents and it is not joint family property. This means that there is a serious dispute of claim made by plaintiffs. In such a case any prudent man need to be more vigilant and diligent and is expected to know about Court proceedings. In this case, initially the suit was dismissed for default. Plaintiffs then filed application to set aside the order dismissing the suit for default. Plaintiffs also filed application to condone delay. Defendants do not plead ignorance of these two applications. Indeed they admit. In the absence of any specific averment by them it can be inferred that they came to know about the plaintiffs’ efforts to get the order dismissing the suit for default set aside only through their lawyer. Curiously they plead ignorance when the same lawyer appeared and in his presence the applications were allowed. A copy of the order in I.A.No.1305 of 2002 is filed before us. The same would show that the Counsel for defendants appeared and opposed the application. That being the case, the law presumed constructive notice to the parties. When once a litigant before the Court engages a duly instructed Counsel in other supplemental or incidental proceedings notice to the parties need not be given. This purport of Order III Rule 5 of CPC has been explained by Supreme Court in Ningashetti (supra) as follows. Notice to the pleader is notice to the party, in view of Rule 5 of Order III, Civil Procedure Code, which provides that any process served on the pleader of any party shall be presumed to be duly communicated and made known to the party whom the pleader represents and, unless the court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person. In East India Hotels Ltd (supra), following Ningashetti (supra), Supreme Court held as follows. On 13.11.1998 the trial Court recorded the fact of filing of the award by the Umpire and directed that learned counsel for the parties be informed. This order was duly noted by the counsel for both the parties. In our opinion the essential requirement of sub-section (2) of Section 14 (of Arbitration Act, 1940) was duly complied with inasmuch as intimation of filing the award to the parties was communicated. As notice to the counsel is notice to the party, the above order dated 13.11.1998 together with the endorsement of the advocate on the proceeding sheet would amount to a proper and valid service of notice under sub-section (2) of Section 14 of the Act. We have already mentioned that as per the direction of the court the Umpire also filed the record. We, accordingly hold that the order dated 13.11.1998 which was noted by the learned counsel, would amount to a valid notice under sub- section (2) of Section 14. We therefore, need not consider the alternative arguments of Dr.Singhvi. Learned Senior Counsel for plaintiffs/respondents relied on Sunil Poddar v Union Bank of India[6]. In the said decision, apex Court considered the effect of CPC (Amendment) Act 1977, having regard to the 27th and 54th Law Commission reports in relation to Order IX Rule 13 of CPC. While holding that mere non-service of summons would not enable the Court to set aside ex parte decree if it is shown that the defendant had otherwise knowledge of the proceedings, the Supreme Court observed as follows. It is, therefore, clear that the legal position under the amended Code is not whether the defendant was actually served with the summons in accordance with the procedure laid down and in the manner prescribed in Order 5 of the Code, but whether (i) he had notice of the date of hearing of the suit; and (ii) whether he had sufficient time to appear and answer the claim of the plaintiff. Once these two conditions are satisfied, an ex parte decree cannot be set aside even if it is established that there was irregularity in service of summons. If the court is convinced that the defendant had otherwise knowledge of the proceedings and he could have appeared and answered the plaintiff’s claim, he cannot put forward a ground of non-service of summons for setting aside ex parte decree passed against him by invoking Rule 13 of Order 9 of the Code. In view of the above decisions, we are not able to accept the plea of learned Counsel for appellants. Further, though in the affidavit filed along with application before the trial Court they alleged that their Counsel did not inform about the restoration of the suit, no evidence is offered in support of the same. The submission made across the Bar that whereabouts of Counsel are not known, has to be rejected, as an afterthought. If the defendants had filed at least an affidavit from the Counsel to the effect that he did not inform about the restoration of the suit, the things would have been different. The application for restoration and application to condone delay in filing application for restoration was allowed on 07.2.2003 and the suit was decreed ex parte on 27.12.2006. Therefore there was a gap of almost three years and defendants would like this Court to believe that for more than three years they were not aware of the proceedings of suit. When the plaintiffs and defendants reside in the same village, it is highly improbable and therefore their case cannot be accepted. In Rafiq (supra), the Supreme Court held that the party to the proceedings should not suffer for misdemeanour or inaction of Counsel. In the said case, the appeal filed by Rafiq before Allahabad High Court was dismissed under Order XLI Rule 17 of CPC, for the absence of Counsel. It was brought to the notice of Supreme Court that in Allahabad High Court, there was a practice that lawyers remain absent when they do not like a particular Bench. Therefore, the Supreme Court came to the conclusion for such fault on the part of lawyer, party cannot be made to suffer and accordingly set aside the order of Allahabad High Court dismissing the appeal and refusing to recall the order duly remanding the matter for fresh consideration. In Tea Auction Ltd (supra), Supreme Court while setting aside ex parte decree, held that Court cannot impose onerous condition like directing to deposit entire suit claim. Explaining the scope of Order IX Rule 13 of CPC, their Lordships held as follows. Order IX Rule 13 of CPC did not undergo any amendment in the year 1976. The High Courts, for a long time, had been interpreting the said provision as conferring power upon the courts to issue certain directions which need not be confined to costs or otherwise. A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also other attending facts and circumstances. It may also consider the question as to whether the defendant should be put on terms. The court indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, the appellate court would have power to interfere therewith. (emphasis supplied) I n Rabindra Singh (supra), a suit was filed before Land Revenue Court for partition and the same was decreed ex parte against appellant therein. It was proved that appellant, who was residing in foreign country for more than 25 years was not served with any notice although the plaintiff therein had knowledge of his correct address. When the application was filed under Order IX Rule 13 read with Section 151 of CPC, Revenue Court dismissed the application holding that the same was not maintainable. The appeal was also dismissed by the Collector as well as Commissioner. The High Court refused to interfere in the matter. The Supreme Court allowed the appeal in exercise of powers under Article 142 of Constitution of India and gave directions for expeditious disposal of the suit. The Supreme Court also came to the conclusion that as the notice was not served on Rabindra Singh, it was proper to set aside the ex parte decree exercising inherent powers and having regard to the principles of natural justice. This decision is not relevant for the controversy before this Court. As noticed supra, though appellants/defendants alleged that their lawyer did not inform them about restoration of suit, they did not prove the same before the Court below nor before this Court except stating that the whereabouts of lawyer is not know. This position would show that the appellants failed to show that they were prevented by any sufficient cause from appearing in the suit. We do not find any merit in the appeal and it deserves to be dismissed. The civil miscellaneous appeal is accordingly dismissed without any order as to costs. _______________ (V.V.S.RAO,J) ______________________ (B.N.RAO NALLA,J) December , 2009 YS [1] AIR 1981 SC 1400 [2] AIR 2000 SC 67 [3] (2008) 7 SCC 663 [4] AIR 1962 SC 666 [5] (2001) 4 SCC 175 [6] (2008) 2 SCC 326