SA. 65-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL No. 65 OF 2011 Dadu Pandu Patil & Anr. ...Appellants Vs. Babasaheb Ramrao Patil ...Respondent *** Mr. Nagesh Chavan, for the Appellants. Mr. J. Shekhar i/b M/s. J. Shekhar & Co., for Respondent No.1. *** CORAM: V. M. KANADE J. DATE : JULY 15, 2011 P.C. 1. Heard the learned counsel for the appellants and the learned counsel for the respondent. Appellants are the original plaintiffs. Appellants are aggrieved by the judgment and order passed by the District Judge-I, Sangli dated 29th September, 2010. By the said judgment and order, the learned District Judge was pleased to allow the appeal filed by the respondent/defendant and set aside the judgment and decree passed by the trial court in favour of the plaintiffs/appellants herein. SA. 65-11 - 2 - 2. It is submitted that when the appeal came up for hearing before the District Court, the appellant’s advocate made a statement that he had not received any instructions from the plaintiffs and therefore, he did not make any submission. He submitted that the lower appellate court should have issued notice to the appellants herein. However, instead of issuing the notice, the learned District Judge proceeded to decide the appeal on merits and the appeal was allowed and the judgment and decree passed by the trial court was set aside. 3. The substantial question of law which is raised by the appellants in this appeal is – whether the lower appellate court erred in not issuing notice to the appellants when their advocate has filed on record no instruction pursis? and secondly, whether the lower appellate court was justified in accepting the statement of the advocate without first verifying whether he had complied with the procedure laid down in paragraph 660 of the Civil Manual, and the Advocate’s Act, 1962 ? 4. Learned counsel appearing on behalf of respondent/ original defendant submitted that in view of the statement of the advocate, the lower appellate court was not justified in proceeding with hearing of the appeal and at the best it could be said that it is an exparte order passed by the court and the lower appellate court had the power to pass exparte SA. 65-11 - 3 - order under the provisions of Order 41 of the Civil Procedure Code. 5. In my view, there is some substance in the submissions made by the learned counsel appearing for the appellants. In paragraph 8 of the judgment, the lower appellate court has recorded statement of advocate Mr. V. D. Gujar in which it is stated that he has not received any instructions and therefore, he did not make any submission. It is an admitted position that Vakalatnama was not filed by said V. G. Gujar advocate, but he had only filed a note of appearance before the lower appellate court. Under the circumstances, it was the duty of the lower appellate court to ensure that proper notice was given to the appellants herein. The lower appellate court, therefore, in my view, clearly erred in not giving notice to the appellants after the statement was made by the advocate that he has not received any instructions. Therefore, lower appellate court was not justified in passing the impugned order. The impugned order, therefore, is set aside. The matter is remanded back to the lower appellate court. The appellants shall engage an advocate within four weeks from today. The lower appellate court shall decide the appeal as expeditiously as possible, in any case within a period of three months. Second Appeal is disposed of in the aforesaid terms. [ V. M. KANADE J.]