IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :24-8-2009 CORAM THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.M.A.No.604 of 2001 1.Kuppasamy Mudaliar 2.Samithurai 3.Selvaraj 4.Valli 5.Apoorvam Ammal 6.Kaliamoorthy Achari 7.Vaithiyanatha Asari 8.Kannan Asari 9.Nataraja Asari 10.Panneerselvam 11.Vasantha ... Appellants/ Respondents --Versus-- Govindaraj Asari ... Respondent Civil miscellaneous appeal preferred under Section 104 read with Or.XLIII R.1 C.P.C. against the Judgement and decree in I.A.No.329 of 1997 in A.S.No.50 of 1995 dated 21.12.2000 on the file of the Principal Subordinate Judge, Cuddalore. For Appellants :Mr.M.Vellaisamy For Respondent :Mr.R.Sunikumar JUDGMENT On 20.10.1997 when the appeal stands posted in A.S.N.No.50 of 1995 on the file of the Principal Subordinate Judge, Cuddalore the learned counsel for the appellants reported "no instruction". As a result, the matter was adjourned to 4.11.1997 for judgement and on that day the judgement was pronounced passing exparte decree. I.A.No.329 of 1997 was subsequently filed by the appellant contending that he was suffering from virus fever in second week of September, 1997 and he was not in a position to go over to Advocate Office and give proper instructions, on which date his counsel reported no instruction. Hence exparte decree was passed. The appellants filed an application under Order 41 Rule 21 C.P.C. contending that notice should have been served on the appellants when there was no representation on behalf of the appellants. Hence they sought for setting aside the decree and judgment passed on 4.11.1997 terming as exparte decree. https://hcservices.ecourts.gov.in/hcservices/ 2. Counter was filed by the respondent contending that the judgment and decree cannot be set aside as it was passed on merits. By an order dated 21.10.2000, the appellate Court dismissed the said application pointing out the contradiction regarding the health of the appellant by evidence of P.W.2 Doctor. 3. Against the said dismissal order dated 21.10.2000, the present appeal has been filed. Mr.M.Vellaisamy, learned counsel for the appellants contended that the court below ought to have given notice to the appellant before deciding the case on merits especially when the counsel for the appellant reported no instruction on behalf of the appellants. It was the bounden duty of the court to issue notice to the appellants and in the absence of appellants the matter should not have been decided. 4. On the other hand, Mr.R.Sunilkumar, learned counsel for the respondent submitted that the conduct of the appellants was only shows that it is intended to drag on the matter was dragged. Even as per the impugned order, the appellant did not prove that they were prevented by sufficient cause from appearing before the court. He also submitted that when the notice was served and the counsel for the appellants appeared on behalf of the appellant, there was no necessity for the appellate court to issue notice to them, even, if no instruction was reported by the counsel for the appellants. 5. It is seen from the records that a suit was filed by the respondent for declaration of title and for permanent injunction. After contest, the suit O.S.No.110 of 1991 on the file of the Additional District Munsif, Cuddalore filed by the respondent herein against the appellants 1 to 3 was dismissed by a decree and judgement dated 2.3.1995. Against the said judgement and decree an appeal in A.S.No.50 of 1995 on the file of the Subordinate Judge, Cuddalore was filed by the respondent herein. The appeal was posted in special list on 13.10.1997 and thereafter it was adjourned to 16.10.1997 for argument of the appellants herein. On that date, the learned counsel for the defendants reported no instruction and hence the appeal was adjourned to 4.11.1997 and a judgement came to be pronounced on merits on that date. A perusal of the judgement and decree dated 4.11.1997 would show that it was passed on merits. 6. Subsequent to the decree and judgement, the appellants herein filed I.A.No.329 of 1997 to set aside the decree and judgement terming as exparte decree. The said application purported to have been filed under Order 41 Rule 21 C.P.C. The said rule has been extracted hereunder: "21. Re-hearing on application of respondent against whom ex parte decree made-- Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfied the Court that the notice was not duly served or that he was prevented by https://hcservices.ecourts.gov.in/hcservices/ sufficient cause from appearing when the appeal was called on for hearing, the court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him." 7. Order 41 Rule 21 would be applicable only if the appellants satisfy the court that the notice was not duly served on him and he was prevented by sufficient cause from appearing when the appeal was called for hearing. Whereas in this case the appellants namely Kuppusamy Mudaliar and others were served and M/s.T.R.Mugundan, Advocate appeared on behalf of the appellants herein and Mr.M.Balathandayutham appeared for respondent. The respondents 1,4 and 11 in the appeal were already set exparte. Later respondents 2 and 3 therein were also set exparte, since no instruction was reported by their counsel and they called absent at the time of hearing of the appeal. Aforesaid facts have been extracted in the decree passed in A.S.No.50 of 1995 on the file of the Subordinate Court, Cuddalore. 8. It is curious to note that the petition to set aside the exparte decree was filed by the respondents (Appellants herein) in the appeal suit namely Kuppusamy Mudaliar and others and whereas the records would show that respondents 2 and 3 alone set aside in the appeal suit. The counsel in appeal suit who appeared for respondents 2 and 3 reported no instruction. After pronouncement of the judgement and decree, Mr.T.R.Mugundan, the same counsel who reported no instruction in the appeal on behalf of the respondents 2 and 3 filed the application in I.A.No.329 of 1997 to set aside the judgement and decree. That itself would itself speak about volumes malafide motive of the appellants herein. 9. In the appeal suit there was no necessity for the party to appear before the appellate court and there was also no necessity for the respondents therein to instruct the counsel as pleadings and evidence were already available on record. Assuming that their presence was necessary and the counsel reported no instruction without their knowledge, in that event the respondents should have engaged some other counsel because previous counsel had reported no instructions. The very same counsel filed the said application would demonstrate that the appellants adopted tactics to prevent the passing of judgement and decree in the appeal suit. 10. Mr.M.Vellaisamy, learned counsel for the appellants relied upon a judgement of this court in Vasu Thevar and others -versus- Rukumani Ammal and another reported in AIR 2000 Madras 190 to highlight the points that when the counsel reported no instruction on behalf of the appellants, notice should be ordered to the parties. This court after referring upon Malkitat Sing v. Joginder Singh, reported in AIR 1998 SC 258 and in the case of Tahil Ram Issardas Sadrangani v. Ramchand Issardas Sadarangani, reported in AIR 1993 SC 1182 held that if the counsel for the parties reported no instruction and in the absence of any proof to show as to whether the parties had the notice of hearing of the case on that day, the interest of justice was required, that a fresh notice for https://hcservices.ecourts.gov.in/hcservices/ actual date of hearing should be sent to the parties. In paragraph 15 of the judgement it has been held as follows: " 15. In a matter like this, I am of the view that reporting of "no instructions" should not be for the asking and it should be permitted only if the counsel satisfies the judicial conscience of the Court that for the compelling reasons he was posed to plead " no instructions". The court should first satisfy itself that there is sufficient cause for the counsel to withdraw from the case and on such withdrawal being permitted the court should order notice to the party whose counsel has reported "no instructions" I am also of the view that it is the duty of the court whether the matter is underrepresented without sufficient cause. If sufficient cause is shown, then it is the duty of the Court to issue notice to the person concerned informing him that his advocate has revoked his vakalath and thereby call upon him to take appropriate steps as necessary for him to defend his case. In my opinion, it is always the duty of a counsel before pleading no instructions to inform the part 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. In our case, when the matter is pending before the lower appellate court, the counsel for respondents therein reported no instructions. In such circumstances, it was the duty of the Court to enquire from the counsel concerned 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. The judicial conscience of the Judge should always be satisfied before he permits a lawyer either to withdraw or to retire from the case. In the instant case, 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." 11. I respectfully agree with the judgement of this court in Vasu Thevar and others vs. Rukmani Ammal and another reported in AIR 2000 Madras 190. In this case, the counsel Mr.T.R.Mugundan reported no instructions on 20.10.1997 without ascertaining anything from his clients and the court permitted him to withdraw his vakalath from the case and later the judgement was pronounced based on the available records. The peculiar aspect of the case is that the very same counsel, who reported no instruction, again filed the I.A.No.329 of 1997 under Order 41 Rule 21 of C.P.C. The court should have enquired from the counsel atleast at that stage https://hcservices.ecourts.gov.in/hcservices/ as to what circumstances he withdrew his vakalath and which circumstance made him to appear on behalf of the appellant again; It is seen that the court very casually dealt with the matter. The party entrusts the matter to the counsel with a bonafide belief and faith that his interest would be safeguarded, while defending the case. Without knowledge of the party the counsel cannot report no instruction. This is a classical example where counsel on record and the party conspired together so as to prolong the case. The advocate, who gave no instruction and allowed the court to pronounce the judgement again cannot file an application on behalf of the same party to reopen the case. The conduct of the advocate and also the parties are very surprising and not in tune with the standard expected from an advocate. In any event the party should be made aware of the hearing of the case, in which he is a party. Though the parties failed to prove before the appellate court that they were prevented from appearing before the appellate court by sufficient cause, this court is of the opinion, in the interest of parties and to protect the interest of both the parties an opportunity is required to properly to defend them in the case. 12. As stated above, absolutely there is no bonafide on the part of the appellants and the facts narrated would also prove the same. In any event the appeal is allowed. Order passed in I.A.No.329 of 1997 is set aside and the judgement and decree passed on 4.11.1997 in A.S.No.50 of 1995 are also set aside and the appeal A.S.No.50/1995 is directed to be disposed of within three weeks from the date of receipt of copy of the order. However the appellants should be burdened with some costs. The appellant is directed to pay a sum of Rs.3000/- to Saradha Ashramam, Ulundurpet within a period of two weeks from today. The appellate court is directed to proceed with the case on receipt of payment receipt and dispose of the appeal. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vk To: 1. The Principal Subordinate Judge, Cuddalore. 2. The Record Keeper, VR Section, High Court, Madras 3. The Saradha Ashramam, Ulundurpet 1 cc to Mr.M.Vellaisamy, Advocate, SR. 41197 CMA No.604 of 2001 KSJ (CO) kk 7/1 https://hcservices.ecourts.gov.in/hcservices/