SCA/10208/2007 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10208 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= CHANDRIKABEN SHANTILAL CHAUHAN - Petitioner(s) Versus KRISHNABEN GULSHANBHAI BUTANI - Respondent(s) ========================================================= Appearance : MS MAMTA R VYAS for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7 None for Respondent(s) : 1, MR NISHANT LALAKIYA for Respondent(s) : 1.2.1, 1.2.2,1.3.1 RULE SERVED BY DS for Respondent(s) : 1.2.3 ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 13/02/2008 ORAL JUDGMENT The petitioners are the original plaintiffs. SCA/10208/2007 2/8 JUDGMENT They had filed Regular Civil Suit No.121/92. They had prayed for vacant possession of the suit premises from the defendants. It is not in dispute that summons of the said suit were duly served on the defendants-present respondents. In fact, it appears that the defendants also actively participated in the suit at the stage of Ex.5 application being decided by the Trial Court. It appears that, however, thereafter there was no participation from the defendants. Many years after the suit was instituted, the Trial Court took up the same for trial. Neither the defendants nor their advocate remained present for many occasions. In fact, admittedly, no written statement was ever filed by the defendants. For want of presence of the defendants or their advocate, the Trial Court also proceeded ex parte and at one stage closed the stage of the defendants leading their evidence. 2. On 6.3.03, advocate for the defendants appeared before the Trial Court and passed a purshis stating that since long time he has received no instructions from the defendants nor have they contacted him. He has in fact written a registered AD letter to them on 18.2.03 asking them to contact him. Despite the said letter, the advocate has not received any instructions from the defendants. He also produced a registered acknowledgment due before the Court and his letter dated 18.2.03 along with his purshis. In the letter, he has stated that the suit has been placed for leading evidence. Next date of SCA/10208/2007 3/8 JUDGMENT hearing is 6.3.03. They should, therefore, contact the advocate in the morning of the date of hearing. If they failed to do so, the advocate would be compelled to pass no instruction purshis. There is no dispute that this registered AD communication was duly served on one of the defendants. Despite this communication, defendants did not contact their advocate. He, therefore, passed purshis as mentioned above on 6.3.03 requesting the Court to permit him to retire. 3. On this purshis, the Court passed order permitting the advocate to retire, but by way of abundant caution also issued notice to the defendants. There is some dispute about this notice not being served on the defendants. Ultimately, the Trial Court proceeded in absence of any representation from the defendants. The suit came to be decreed on the basis of the evidence led by the plaintiff on 22.12.04. The defendants, however, took no steps for considerably long time thereafter also. Eventually, the petitioners were compelled to start execution proceedings. It is the case of the respondents that only upon service of summons from the Executing Court that they came to know that ex- parte judgment and decree has been passed. They, therefore, moved an application being Civil Misc. Application No.25/05 before the Trial Court on 26.7.05. They prayed that the ex parte decree be set aside. The Trial Court, after initially issuing notice on the petitioners and after bi-parte hearing SCA/10208/2007 4/8 JUDGMENT rejected the application by a detailed order dated 10th March 2006. The respondents thereupon approached the District Court and sought setting aside of the orders passed by the Trial Court. They, therefore, filed two separate proceedings for this purpose. Both these applications were consolidated and by an order dated 23.1.2007,the appellate Court allowed the applications. The petitioners-original-plaintiffs have therefore approached this Court by way of present petition. 4. Having heard learned advocates appearing for the parties and having perused the material on record, I find that the respondents, original- defendants have shown gross negligence in pursuing their remedies. As already noted, the summons of the suit were duly served to them. In fact, they had participated at the stage of deciding Ex.5 application. They, thereafter took no further steps from the year 1993 till 2004 till the suit was decided in their absence. Admittedly, no written statement was also filed at any point of time. 5. Additionally I also find that the registered AD notice issued by their advocate on 18.2.03 was duly served to them. Despite that, they took no steps to defend themselves. Their advocate was compelled to pass no instruction purshis in March 2003. Even before that, there was total non-cooperation and support from the defendants and their advocate in the pending suit. Ultimately, the Court was compelled to SCA/10208/2007 5/8 JUDGMENT permit the advocate to retire since the defendants were passing no instructions to him. Even thereafter, the Trial Court took its own time to decide the suit. If the defendants had any desire to defend themselves in the suit, they could have and should have taken steps before the court finally passed the judgment and decree against them. No such attempt was made. At least when in February 2003, they came to know about the said suit, it was their duty to take steps either to instruct the advocate already appearing on record or engage another advocate. They took no such steps. They allowed the proceedings to proceed without any participation. Ultimately, the suit came to be decreed one year and ten months after they were served with notice by their own advocate. All these while, they took no steps. The suit which was instituted in the year 1992 came to be disposed in December 2004 without a written statement from the defendants. 6. Thus on all counts, the defendants had exhibited gross and unpardonable negligence in defending themselves. The learned Judge was therefore perfectly justified in not only deciding the suit ex-parte, but also not entertaining the application for setting aside the judgment and decree. 7. Significantly, even in the application seeking setting aside the order of the Trial Court, the defendants have not stated any justifiable, SCA/10208/2007 6/8 JUDGMENT plausible or acceptable ground which prevented them from defending themselves from the year 1992 till 2004. All they stated was that important issues arose in the suit and that therefore they should be permitted to defend themselves. 8. Learned advocate Shri Lalakiya for the respondents-defendants submitted before this Court that after they succeeded in Ex.5 application in the year 1993, their advocate conveyed to them that they have finally succeeded in the suit and that the defendants were not aware about the suit being pending and that they therefore did not take any further steps. Such a defence cannot be accepted for variety of reasons. Firstly, there is nothing on record to establish these averments. Secondly, the respondents have not stated any of these things in their application before the Trial Court seeking setting aside of the ex parte order. Thirdly, at least after 18th February 2003, notice of their own advocate having been served on them, it was their duty to take appropriate steps to defend the suit. Considering all these aspects, I do not find that the defendants have put forth any acceptable or plausible explanation to remain away from the suit. Under the circumstances, I find that the appellate court committed an error in allowing the appeal of the defendants. 9. Reliance was placed by the learned advocate for the respondents on a decision of this Court in SCA/10208/2007 7/8 JUDGMENT the case of Maganlal D. Patel v. Laxmandas N. Patel, 1987(1) GLH 402. It was, however, a case wherein the Court observed that if an advocate passes no instruction purshis, before permitting the advocate to retire, the Court must examine that there was sufficient cause and reasonable notice was given to the client. In the present case, I have already noted that such a notice was issued and duly served on the defendants. 9.1 Reliance was placed in the case of Srei International Finance Ltd. v. Fairgrowth Financial Services Ltd., 2005 (13) SCC 95. In the said decision, the Apex Court observed that a litigant should not be denied a hearing on merit unless something akin to gross negligence or misconduct on his part in contesting proceedings is made out. In the present case, I have already found that the act of the defendants was amounting to gross negligence on their part. 9.2 Reliance was also placed by the learned advocate for the respondents on the decision in the case of Malkiat Singh v. Joginder Singh, JT 1997 (9) SC 642. It is a case wherein the Apex Court on facts found that since after no instruction was passed by the advocate, no notice was served on the parties and therefore the proceedings were remanded. In the present case, I have found that the defendants had sufficient opportunity to know about the pending proceedings despite which they have taken no steps to SCA/10208/2007 8/8 JUDGMENT defend themselves. 9.3 Reliance was placed on the decision in the case of B.Janikaramaiah Chetty v. A.K.Parthasarthi, (2003) 5 SCC 641. The Apex Court in that case observed that upon non-appearance of a party on the date fixed for hearing, it is not mandatory for the Court to proceed ex parte. The provisions contained in Order 9 Rule 6 and 13 are only permissible in nature. I do not find that the law laid down therein would apply to the facts of the present case. 10. I am conscious that ordinarily courts should not favour ex parte decisions and this Court would be loath to put finality on a issue which is decided without full participation of both sides. However, present case is one of glaring facts of total negligence and omission on the part of the defendants to participate in legal proceedings. 11. In the result, the petition is allowed. The order dated 23.1.2007 passed by the appellate Court is set aside. Rule is made absolute accordingly. (Akil Kureshi, J.) (vjn)