JUDGMENT
C. Shivappa, J.
1. In this appeal, the appellant has challenged the order dated 31.3.1998 passed on the Application No. 3710 of 1997 in C.S.No. 66 of 1990 on the Original Side of this Court. Along with that he had also filed an application seeking to set aside an order passed exparte, dated 2.3.1993 in C.S.No. 66 of 1990, which is still pending in the original side.
2. The learned Counsel who appeared for the appellant herein, has sworn to an affidavit setting out the causes for delay. He has stated that summons were served on the appellant in the year 1990 and the case was entrusted to his office clerk Mr. Venugopal for filing vakalat in the Registry. Thereafter, he was Under the impression that vakalat had already been filed. But, on 2nd November, 1995, while clearing up the papers in his office, it was found that vakalat had not been filed. Thereafter, the suit register was verified and vakalat was filed on 17.11.1995.
3. Since the suit register did not disclose any order having been passed in the proceedings, he was under the bonafide impression that nothing adverse to the appellant had happened till then. Thereafter, in the second week of August, 1996, since his colleague Ms. Kamala contacted the plaintiff to find out the possibility of settlement in the matter, some time was consumed and thereafter she was given to understand that some orders had been passed in the suit. On perusal of the court records on 16.8.1996, it was found that no decree had been passed.
4. It is alleged that the delay was neither wilful nor wanton, but only due to an assumption, that the clerk had done the work of filing the vakalat as entrusted and never even doubted or imagined the lapse or omission on the part of the clerk. It is stated that the office of the Advocate had no knowledge of the order till 16.8.1996 in spite of the search at the registry and thereafter could not file the application for condonation of delay and for setting aside the exparte order. It is also stated that after 16.8.1996, his colleague, Ms. Kamala, who was entrusted with the matter was suddenly hospitalized and she was unable to take any steps to entrust the papers to anybody else in the office and she returned to work after several months.
5. Thus, in substance, inability to find out the fault of the clerk, non-disclosure of the disposal in the suit register and ill-health of the learned Counsel for a considerable time are pleaded as sufficient cause to seek condonation of delay.
6. The learned Senior Counsel Mr. Sriram Panchu, appearing for the appellant contended that the explanation offered seeking condonation of delay, not considered in proper context, keeping in view the consequences objectively. The learned senior counsel Mr. Rajagopalan, appearing for the respondent, though tried to defend the order but unable to show the deliberate lapse on the part of the counsel who appeared for the appellant before the trial court.
7. The learned Judge proceeded on the basis that not knowing the progress of the case is an indicative of the erratic attitude of the appellant. He has also observed that no steps have been taken to get the exparte decree set aside and the court declined to attach any sanctity to the affidavit of the advocate and dismissed the application.
8. The learned Judge has proceeded on the assumption that there is an exparte decree. “Decree” has been defined in Section 2(2) of the Code of Civil Procedure, which means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It means that it shall be deemed and include determination of any question and adjudication of the fights, In order to become a decree, it must fulfil the conditions of the definition under Section 2(2) of Civil Procedure Code. The adjudication must be of such a nature which conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit within the meaning of Section 2(2) of Civil Procedure Code. It implies that the question in controverting must be set out in that direction right to be declared conclusively indicating tile basis for such determination, (sic.) An order marking certain documents without determining the right and without adverting to a question cannot tantamount to a decree within the meaning of Section 2(2) and it cannot be held to be an adjudication which conclusively determines the right of the parties with regard to any. of the matters in controversy in the suit. There-fore, the learned Judge is not correct in construing the order dated 2.3.1993 as exparte decree. The order dated 2.34993 reads thus:
Defendant remains ex parts. P.W.1 examined. Exs.P-1 to P-3 marked. The plaintiff’s claim for recovery of possession is proved. The defendant, who has admittedly put up the superstructure in the suit property is entitled to the value of the superstructure. Therefore, a Commissioner has to be appointed for fixing the value of the superstructure. The plaintiff is therefore directed to file an application for the appointment of a Commissioner, within two weeks from today.
There is no determination of rights or consideration of Exs.P-1 to P-3 regarding the claim for possession or the nature of the superstructure and its value. The matter is still pending. In such a situation, it cannot be called it is an adjudication which conclusively determines the right of the party with regard to the matter in control very in the suit. Production of a document and mere making does not dispose with the proof.
9. In Sangram Singh v. Election Tribunal, Kotah . The Apex Court discussed what does the word, “exparte ” mean, with reference: to judicial opinion propounded by Wallace, J. in Venkatasubbiah v. Lakshminarasimhan 49 M.L.J. 273 : A.I.R. 1925 Mad. 1274, that “ex parte” merely means in the absence of the other party, and on the other side is the view of O’Sullivan, J. in Hari Ram v. Rawachand A.I.R. 1945 Sind. 98 at 102, that it means that the court is at liberty to proceed without the defendant till the termination of the proceedings unless the defendant shows good cause for his non-appearance. The Apex Court adopted the line of reasoning of Wallace, J. and thought that he is right. It was held thus:
When the defendant has been served and been afforded an opportunity of appearing, then, if he does not appear, the court may proceed in is absence. But, be it noted, the court is not directed to make an “exparte” order. Of course the fact that it is proceeding “exparte” will be recorded in the minutes of its proceedings but that is merely a statement of the fact and is not an order made against the defendant in the sence of an “ex parte ” decree or other “ex parte ” order which the court is authorised to make….
…If at “an adjourned hearing” the defendant appears and shows good cause for his “previous” non-appearance”, he can be heard in answer to the suit.
as if he had appeared on the day fixed for his appearance.
This cannot be read to mean, as it has been by some learned Judges, that he cannot be allowed to appear at all if he does not show good cause. All it means is that he cannot be relegated to the position he would have occupied if he had appeared.
At para 30, it was held thus:
Now Rule 2 only applies when one or both of the parties do not appear on the day fixed for the adjourned hearing’. In that event, the court is thrown back to Order 9 with the additional power to make “such order as it thinks fit”. When it goes back to Order 9, it finds that it is again empowered to proceed ‘ex parte’ on the adjourned hearing in the same way as it did, or could have done, if one or other of the parties had not appeared at the first hearing, that is to say, the right to proceed ‘ex parte’ is a right which accrues from day to day because at each adjourned hearing the court is thrown back to Order 9, Rule 6.
It is not a mortgaging of the future but only applies to the particular hearing at which a party was afforded the chance to appear and did not avail himself of it. Therefore, if a party does appear on “the day to which the hearing of the suit is adjourned”, he cannot be stopped from participating in the proceedings simply because he did not appear on the first or some other hearing. [Italics is ours]
10. Therefore, there is nothing like an exparte decree in the instant case. So long the rights involved is not finally adjudicated, the participation cannot be denied. The very fact that the suit register does not show disposal is indicative that there is no final adjudication. In such an event, the matter is lying in the same stage when the appellant was placed exparte without final adjudication. If that view is taken, the question of delay loses its significance. Even without defence, participation cannot be denied. If so advised, the party so absent can seek permission to put such defence open to him. In substance, the right of participation subsequent to placing the party exparte is not barred or precluded in law.
11. Even in case of refusal of adjournment or where the counsel reported no instructions, the decree then passed by the court can only be ex parte, though it proceeds on merits. The defendant, against whom an ex parte decree has been passed under Rule 6 of Order 9 for default of appearance at the hearing, has the following courses open to him, namely, in an appeal from the exparte decree under Order 9, Rule 6, he may apply for review of the judgment under Order 47, Rule 1(1). He may apply under Rule 13 of Order 9 for an order to set aside the ex parte decree provided the application is made subject to limitation. In order to appeal or to review implies adjudication on merits as held by this Court in Dhanalakshmi Ginning and Rice Oil Working Company v. Yellappa Chetti even if the court purports to deliver a judgment on merits.
12. Since the appellant has suffered an order of dismissal of his application seeking condonation of delay, we are examining that aspect, in addition to the view we have expressed earlier on the nature of the order.
13. The above order does not come under the fact of decree contemplated in law. When it was specifically contended that as on 16.8.1996, the court records did not contain the reference to the fact that a decree has been passed and the lapse was put on the omission by a clerk of the advocate and talks regarding settlement. While examining the explanation regarding sufficient cause, the court ought to have recorded a finding about the bona fides of the allegations made in the affidavit explaining the delay. The learned Judge ought to have adverted to the consequences on a litigant on account of the lapse on the part of the advocate’s office. The learned Judge also ought to have taken into consideration the position of the party, namely, the appellant, which is a Charitable Institution, having thousands of children and wherein an orphanage, teachers’ training school, primary school are being run. And when the party is an Institution doing service to disabled children and imparting education, it ought to have visualised the consequences of an exparte order and should not have taken a highly technical view, rather approached from a liberal and pragmatic way to advance substantial justice.
14. Having noticed in para 6 of the order that the appellant is an orphanage, the learned Judge has failed to visualise the hardship or to weigh the circumstances in the context of the explanation, that too, when the lapse is not that of the appellant, but that of the counsel.
15. In N. Balakrishnan v. M. Krishnamurthi (1998) 3 Scale. 105, it was held that not following up a case does not on the whole, warrant to castigate a party as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, vigilance on the part of the litigant is required, but during these days where everybody is fully occupied with his own avocation of life, all omission to adopt such extra vigilance need not be a criteria to project the litigant as irresponsible, so as to invite drastic consequences. It was further held that in every case of delay, there can be some lapse on the part of a litigant concerned but that alone is not enough to turn down the plea and to shut the door against him. The test laid down by the Apex Court is that if the explanation does not smack of mala fides and if not put forth as a part of dilatory strategy, then the court has to show utmost consideration to the suitor.
16. In the instant case, where the delay was not deliberate, but on entrustment to the clerk to file the vakalat, with a bona fide belief that he might have filed, the counsel did not follow the case, : not doing it, the lapse should not affect the party who did his part of the work bona fide believing his counsel. In such a situation, where the lapse was not deliberate or does not smack of mala fides or not intended to adopt any dilatory strategy, it would be a just case to condone the delay, but without making the effort and time of the other side a waste. In other words, an adequate cost would meet the ends of justice to compensate the party for his loss.
17. In Lachi Tewari v. Director of Land Reforms AIR 1994 S.C. 41, it was held thus;
After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.
18. Normally, sufficient cause must be a cause which is beyond control of the party invoking the aid of the section. For somebody else’s negligence or fault, the party or the substantial justice should not be allowed to suffer; Where neither negligence nor want of bonafide is imputable to the party for the delay in filing, it would constitute sufficient cause. Where the party did everything at his command, but the lapse is on the part of the counsel, it affords a ground for condonation. But a slip due to accidental mistake or oversight by a pleader or on the ground of illness may be excused. These are all excusable oversight of a parry’s advocate, which at times require a liberal approach from the point of the party concerned, where there was no negligence on his part. Not following up the case after engaging a counsel, even assuming that it can come within the ambit of honest mistake, even such mistake is entitled for excuse and comes within the meaning of ‘sufficient cause’ for excusing the delay.
19. Keeping the nature of the order, the consequences and the conduct of the party and non-mentioning of the disposal in the suit register, all put together, it indicates a bona fide inaction imputable to the counsel. Therefore, we disagree with the reasoning of the learned trial Judge and we are of the opinion that the explanation constitutes sufficient cause to condone the delay. But for the mistake or inaction on the part of the counsel, the respondent should not be made to suffer for the fault of others. Having regard to the fact that the respondent is a temple, the learned senior counsel for the appellant, on his own volition suggested to impose a sum of Rs. 15,000 as the cost payable to the respondent. Accordingly, the appellant is directed to pay a sum of Rs. 15,000 as the cost, to the respondent.
20. For reasons aforestated, the appeal is allowed and the impugned order dated 31.3.1998 passed on Application No. 3710 of 1997 in C.S.No. 66 of 1990 is set aside and the appellant may work out his remedy in the pending application for setting aside the order dated 2.3.1993, in accordance with law.