Decided on June 09,2003

AVARA Respondents


- (1.) This C.M.A. is filed against the order passed in I.A. No. 2508 of 1999 in O.S. No. 696 of 1996 of the Sub Court, Palakkad. That was the suit filed against the present petitioner for return of the advance amount paid by the plaintiff. When the suit came up for hearing on 14th September, 1998 the defendant was absent. Counsel for the defendant reported 'no instruction'. The defendant was set ex parte. Then an ex parte order was passed. An affidavit was filed by the plaintiff. The suit was decreed on 14th September, 1998. Thereafter a petition was filed to set aside the ex parte decree. There, petitioner stated that she could not contact her lawyer because she was not well due to her heart operation. She also stated that she had developed problems on her right leg which prevented her from undertaking journey and in such circumstances she could not appear before the Court. She came to know about the decree when she received notice in the execution proceedings.
(2.) There is a delay of 335 days in filing the petition to set aside the ex parte decree. The Trial Court dismissed the application on the ground that the heart operation was performed about nine years before the passing of the ex parte decree and she used to visit her doctor at least twice in a month. Since the office of the lawyer is near the residence of the doctor she could have gone to her lawyer and enquired about the fate of her case. It is against the dismissal of I.A. No.1508 of 1999 this C.M.A. is filed.
(3.) Learned counsel for the appellant Shri. V. Chitambaresh brought to our notice the decision reported in Malkiat Singh v. Joginder Singh ( 1998 (2) SCC 206 ), a case where the counsel reported no instructions and the Court did not issue any notice to the appellants. It was held by the Supreme Court that the counsel should have informed the parties about the representation made before Court. If this is not done, the entire proceedings will be illegal. The Court has cautioned that in cases where there has been negligence or default on the part of the party the Court may take its own view. In this case there is nothing to show that the counsel had written to the party that he is not representing him. Further there is nothing to show that notice has been issued by the Court after the counsel informed to instructions. In such circumstances this case comes squarely within the decision of the Hon'ble Supreme Court. Counsel can report no instructions to the Court when the case comes up for hearing after he previously informs the party. In such a case the party may not be able to wriggle out of the situation and contend that notice should be sent. But in a case where the party is not informed about the action taken by the counsel, then in that case it is the duty of the Court to send notice. According to us, counsel can inform the Court that a registered notice has been sent and produce a copy of the notice in order to avoid situations like the present one.;

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