BASALINGAPPA KUSHAPPA KUMBHAR Vs. SHIDRAMAPPA IRAPPA SHIVANAGI

JUDGEMENT

(1.) The question arising for decision in this revisional application is whether a decree passed by the Court on evidence led by the plaintiff after the defendant's pleader withdrew for want of instructions is an ex parte decree or a decree on the merits. The facts of the case are that after the suit was taken from the sine die list, it was fixed for evidence on 8 September 1939. On that date the defendant and his witnesses were absent. His pleader's application for adjournment on that ground was rejected. Thereupon he withdrew from the case stating that his client had not turned up and he had no instructions. The plaintiffs pleader then led his evidence and the Court passed a decree in their favour. Thereafter the defendant applied to have the decree set aside and the suit restored to file on the ground that he was not able to attend the Court because of his illness and his pleader had to withdraw for want of instructions after the application for adjournment was rejected. The learned Judge held that the decree was not passed ex parte but on the merits and the defendant was not, therefore, entitled to apply for setting it aside under Order 9, Rule 18, Civil P.C. On appeal, the learned District Judge held that the decree was ex parte and the defendant's application was, therefore, maintainable and should be disposed of on its merits. This revisional application is preferred against that order.

(2.) The point is really covered by the latest decision of our Court in Gurunath Eknath v. Laxmibai Govind ( 42) 29 A.I.R. 1942 Bom. 344 where the facts were almost similar and it was held that the decree passed in such circumstances was an ex parte decree. But it is contended that there is an unrepdrted decision of this Court in Goswami Sri Vallabhalalji Ranchhodji Maharaj V/s. Kapurchand Jerup ji O.C.J. Appeal No. 5 of 1939 in which it was held that the decree in such circumstances would be one on the merits. The facts in that case were, however, different. On the adjourned date, the defendant's counsel applied for adjournment, which being refused, the learned Judge proceeded with the suit, and counsel then left the Court. The plaintiff's evidence was heard and judgment passed in his favour. On appeal the defendant's case was that the learned Judge ought to have passed an ex parte decree so as to enable the defendant to apply to have it set aside under Order 9, Rule 13. That contention was negatived on the ground that if counsel chooses to withdraw, the Court is not bound to pass an ex parte order under Order 17, Rule 2. It did not appear that the adjournment was asked for on the ground that counsel had no instructions. Mere with-drawal from the case would not be sufficient to attract the application of Order 17, Rule 2, read with Order 9, Rule 6. The withdrawal must be on account of the pleader being not duly instructed and able to answer all material questions relating to the suit as provided in Order 5, Rule 1. That case was similar to the case in Ramchandra Pandurang Naik V/s. Madhav Purushottam Naik ( 92) 16 Bom. 23 where the pleader applied to the Court for an adjournment on the ground that he had not time to fully prepare himself in the case. The Court refused to grant the adjournment and dismissed the appeal for default. It was held that the order of dismissal for default was bad, and that the mere fact that the pleader was not prepared to proceed with the case would not enable the Court to deal with it as if there was no appearance at all for the appellant and to dismiss the appeal for default. The decision was put on the ground that there was a distinction between a pleader refusing to conduct the proceedings because he was not able to argue the case and a pleader wishing to withdraw because he had not received any instructions. It was observed that if the pleader had stated that he had received no instructions, the Court could no doubt have held that there was no proper appearance. But as he did not withdraw on that ground, he must be deemed to have appeared on behalf of his client. The decision in Kader Khan v. Juggeswar Prasad Singh ( 08) 35 Cal. 1023 on which reliance is placed on behalf of the petitioners, is also on similar facts. The defendant's counsel there did not withdraw from the case on account of want of instructions after the adjournment was refused. The adjournment was asked for to enable his witnesses to come to Court. In fact, counsel asked for a fresh opportunity to have his witnesses brought before the Court. That was also refused, and when he was asked to address the Court on the case, he stated that he wished to withdraw from the suit and did so. It was not, therefore, a case of withdrawal for want of instructions, but because he was not ready with his evidence. Such a case would fall under Rule 3 and not under Rule 2 of Order 17. There is, therefore, in our opinion, no conflict between the decision in 44 Bom. L.R. 8441 and in the unreported decision. The question as to whether the defendant's pleader can be said to have appeared depends not upon his mere presence in Court but upon whether he was duly instructed is the matter before the Court.

(3.) The general provisions about appearances of parties in Order 8, Rule 1 are that a party can appear in person or by a recognized agent or by a pleader appearing, applying or acting on his behalf. These are made subject to any other express provision of law. Such an express provision is in Order 5, Rule 1, where the mode of appearance by a defendant is stated to be either (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. The forms of summons given in forms Nos. 1 and 2 of Appx. B to Schedule 1 also contain the same instructions. Where, therefore, the defendant does not appear in person and there is none else to instruct his pleader, the only person through whom he can be said to appear is a pleader who must be duly instructed and able to answer all material questions. It follows, therefore, that if the pleader is present in Court on any day of hearing but has no instructions as to how to proceed with the ease, there is no appearance of the defendant. Whether a pleader is duly instructed is a question of fact, but if he refuses to take part in the trial on the ground that he has no instructions and then withdraws from the case either after, or without making, an application for adjournment, all further proceedings against the defendant become ex parte. If the Court thereafter asks the plaintiff to lead evidence and then passes a decree in his favour, it must be regarded as an ex parte decree. The defendant would then be at liberty to apply to set it aside under Order 9, Rule 18. If he proves to the Court's satisfaction that he was prevented by sufficient cause from appearing, i.e., either personally or by a duly instructed pleader, it would be set aside on such terms as the Court thinks fit. Instead of applying to the same Court for setting aside the decree, he may also appeal against the decree under Section 96, Sub-section (2), on the ground, among others, that he had sufficient cause for non-appearance, and that the trial Court ought to have granted an adjournment. The right of applying to set aside an ex parte decree to the same Court is presumably given on the ground that the suit could be proceeded with more expeditiously if that Court sets aside the ex parte decree on an application made soon after it was passed than if the appellate Court remands the suit on the same ground after a long time. It is for that reason that the Legislature seems to have provided the same procedure for default of appearance after hearing had commenced under Order 17, Rule 2, as would apply to default either before or at the first hearing under Order 9.