JUDGMENT
Raju, J.
1. The above Letters Patent Appeal has been filed against the order of a learned Single Judge of this Court dated 28.8.1991 in C.M.A. No. 804 of 1991 whereunder the learned Single Judge while confirming the order of the Motor Accidents Claims Tribunal/I Additional Sub-ordinate Judge, Coimbatore dismissing an application filed under Order 9, Rule 13, of the Code of Civil Procedure, dismissed the appeal filed in this Court by respondents 1 and 2 in M.C.O.P. No. 263 of 1985. The respondents herein filed M.C.O.P. No. 263 of 1985 under Section 110-A of the Motor Vehicles Act, 1939 claiming a compensation of Rs. 2,00,000/- on account of the death of Ravi@ Ravichandran, the husband of the first petitioner, father of the second petitioner and the son of petitioners 3 and 4 before the Motor Accident Claims Tribunal who was said to have died in an accident which took place on 20.4.1985 at about 12.30 p.m. when he was riding in his bicycle said to have been caused by the bus bearing registration No. TNB 6336 driven by the second respondent and owned by the first respondent before the Tribunal below.
2. The appellants who are respondents before the Tribunal below were said to have engaged one S. Murugesa Marthandam as their Counsel and filed a counter contesting the claim. It appears the very same Counsel was appearing for the third respondent before the Tribunal which is the Insurance Company with whom the vehicle in question was insured. The Insurance Company appears to have separately filed their counter statement. The case appears to have been included in the Special List for the month and taken up for hearing on 7.7.1989. At that time, the Counsel by name Murugesa Marthadam who was appearing for the appellants was said to have made an endorsement that in spite of several reminders the appellants who were respondents 1 and 2 before the Tribunal below have not turned up and therefore, the Counsel reported no instructions. They were set ex-parte and thereafter also the matter was called before Court several times. On the basis of such endorsement the Tribunal below after recording the evidence on the side of the claimants and also after examining R.W.1 has passed an award for a sum of Rs. 80,750/ – with interest @ 12% from the date of filing the claim petition till date of payment. While so awarding the compensation, Rs. 15,000/- was directed to be payable to the mother-4th claimant before the Tribunal and the balance to be equally shared by claimants 1 and 2. The Tribunal below also held that out of the total compensation awarded the Insurance Company would be liable for a sum of Rs. 50,000/- with interest proportionately due thereon and for the balance of the compensation awarded the respondents 1 and 2 appellants would be liable with interest proportionately due therefor. It appears from the materials placed before us that the Insurance Company has complied with the award and deposited the same representing their portion of the liability and since the appellants failed to do so, the execution proceedings were initiated and on receipt of notice in the execution proceedings the appellants filed I.A. No. 302/90 invoking the provisions contained in Order 9, Rule 13, CPC to set aside the ex-parte award said to have been passed against them and have the main petition disposed of on merits as far as the appellants are concerned. The respondents/claimants filed a counter opposing the said claim. It may be noticed even at this stage that no oral evidence has been tendered while the application under Order 9, Rule 13, C.P.C. was heard and on the basis of the submissions made before the Tribunal below the application came to be dismissed by an order dated 1.8.1991. In rejecting the said application the Tribunal below assigned more than one reason. It was observed by the Tribunal below that there was no reason to doubt the genuineness or bona fides of the endorsement made by the Counsel who was appearing for the appellants that they have not taken care to give instructions to conduct the case further and contest the claim and that the explanation now offered about the Counsel not properly informing them of the stage of the proceedings or the dates of the hearing appears to be a false reason unbelievable from the point of the Court and therefore, does not constitute sufficient reason to set aside the award passed. In addition thereto, it was also observed by the Tribunal below that no application has been filed under Order 9, Rule 7, meaning thereby that though the appellants were set ex-parte on 7.7.1989, no attempt was made by them to approach the Court by filing such application to permit them to participate in the further stage of the proceedings before the date of the actual award passed on 3.1.1989, that no application has been filed under Section 5 of the Limitation Act for condoning the delay in seeking to file an application under Order 9, Rule 13, C.P.C. and that the award having been passed also on merits there are no justifying reasons to allow the present claim of the appellants to set aside the same and re-hear the matter.
3. Aggrieved the appellants filed an appeal before this Court in C.M.A. No. 804 of 1991. M. Srinivasan, J. as the learned then was, concurred with every one of the reasons assigned by the Tribunal below in dismissing the application. It may be pointed out at this stage that though on all grounds the learned Judge has chosen to confirm the order of the Tribunal below, the learned Judge held that the Court below did not proceed under Order 17, Rule 2, C.P.C. but proceeded only under Order 17, Rule 2, C.P.C. also as an additional reason apart from the observations made on merits that the appellants have not substantiated their claim by adducing proper evidence to prove the reasons for lapse in their abstaining from the further proceedings in the Court of law. Not satisfied the above appeal has been filed.
4. Mr. K.M. Santhanagppalan, learned Counsel appearing for the appellants forcefully contended that the learned Single Judge was not right in coming to the conclusion that the award passed by the Court below was one under Order 17, Rule 3, C.P.C. and that in law and on facts it should have been held only that Order 17, Rule 2, C.P.C. alone applies to the nature of the award passed in this case and consequently the application filed under Order 9, Rule 13, CPC was well merited and justified. The learned Counsel further contended that the Courts below could not have set ex-parte and acted upon merely on the endorsement made by the Counsel appearing for the appellants who was also appearing for the Insurance Company and held to some extent adverse interest and that the endorsement made by such a Counsel could not be the final word for non-suiting the appellants of their claim that they have not been properly apprised of the dates of hearing and the progress of the proceedings before the Tribunal and consequently the Court below as also the learned Single Judge ought to have taken a liberal view of the matter in order to ensure the advancement of justice. The learned Counsel also contended that the Counsel below appearing for the appellants could not have legitimately reported no instructions when the counter affidavit has, been filed for them and the very same Counsel was proceeding with the case on behalf of the Insurance Company, who was the third respondent before the Court below. In support of the stand taken for the appellants, the learned Counsel relied upon several judgments of this Court as also the other High Courts and the Apex Court to which reference will be made hereinafter. Per contra, the learned Counsel for the respondents adopted the reasons assigned both by the learned Trial Judge as also the learned Single Judge and contended that every one of the reasons assigned by themselves individually and taken cumulatively was more than sufficient to justify the order of dismissal of the claim of the appellants for restoration of the proceedings for being dealt with afresh and the appellants have made out no substantial case to warrant interference in our hands.
5. Though several decisions have been preferred to one the relative scope of Order 17, Rules 2 and 3, C.P.C. and the applicability or otherwise of either of the provisions to the case on hand with reference to the factual situation presented before us, we would refrain from referring to all of them except two decisions. In Prakash Chander v. Janki Manchanda , the Apex Court held that if on a date fixed, one of the parties to the suit remain absent and for that party no evidence has been examined upto that date the Court has no option but to proceed to dispose of the matter in accordance with Order 17, Rule 2, in any one of the modes prescribed under Order 9 of the Civil Procedure Code and particularly after the amendment of the relevant provisions of Central Act 104 of 1976 in Cases where a party was absent only course is to proceed in the manner envisaged under Order 17, Rue 3(b) by proceedings under Rule 2.
6. In Soopi Haji and Ors. v. R.M. Ramanathan Chettiar 1993 (2) L.W. 146, a Division Bench of this Court has reviewed the entire case law on the subject taking into account the earlier case law as also the subsequent case law rendered by different High Courts and held that in cases of absence of the party the order that has to be applied was Order 17, Rule 2, and not Rule 3, C.P.C. Though there is some difference of opinion on the part of different Courts as to whether the presence of a Counsel tantamounts to the presence of the party yet it appears to be now almost settled, that if the presence of the Counsel for the party who was absent was nothing but for his representation that he had no instructions or for reporting that he is withdrawing from the case, it cannot be construed as though the party was present by such presence of the Counsel for the purpose of the rules in question. In view of the above, we have no hesitation in agreeing with the learned Counsel for the appellants that the award which is sought to be set aside by filing an application under Order 9, Rule 13, C.P.C. must be considered to be one which has been really and in substance passed under Order 17, Rule 2 notwithstanding the fact that it was one passed on merits at any rate so far as against the appellants are concerned and entitles them to file an application under Order 9, Rule 13 of the Code of Civil Procedure. This conclusion of ours itself is not sufficient for the appellants getting any relief in this appeal on that account since it is not as though the application came to be dismissed by the learned Trial Judge as well as by the learned Single Judge only on that ground alone. Consequently it becomes necessary for us to consider whether the appellants have sufficiently made out a cause for setting aside the award passed on 31.7.1989 to enable them to obtain any relief in the application filed under Order 9, Rule 13, C.P.C.
7. On the above aspect of consideration the learned Counsel once again has invited our attention to some of the judicial pronouncements to which reference will be made now. In State of West Bengal v. The Administrator, Howrah Municipality , the Apex Court while pointing out that the words “sufficient cause” as found in Section 5 of the Limitation Act cannot be construed too liberally, merely because the party in default was the Government and observed that the expression should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In this case before us it cannot be claimed that the appellants acted with diligence or that they were not negligent.
8. In Rafiq v. Munshilal , the Apex Court was dealing with the case of dismissal of an appeal for default of the Counsel for the appellant in that case. That was a case wherein the High Court disposed of the appeal preferred by the appellant before the Apex Court in the absence of the learned Counsel for the appellant and when the appellant becomes award of the fact that his appeal had been disposed of in the absence of his advocate, he moved the application before the High Court to recall the order dismissing the appeal and permit him to participate in the hearing of the appeal and when such application came to be rejected on account of the further slackness exhibited in filing such an application, the learned Judges of the Apex Court who dealt with matter observed that they could not find fault with the party who has done every thing in his power and expected of him to be made to suffer injustice merely because his chosen Advocate defaulted. On that ground, the learned Judge has while setting aside the order of dismissal of the application by the High Court directed restoration of the appeal for hearing and cost awarded therein to be recovered from the appellant’s Counsel who absented himself in the High Court. A perusal of the decision would go to show that the observation made therein was on the facts of The case where the learned Judges found that the client had done his part in entrusting the appeal and briefing him by paying the fee demanded expecting the matter to be argued when the matter was called and the observations has to be taken as any universal principle to be applied invariably in every case of default to which a situation warranting filing of an application under Order 9, Rule 13, C.P.C. may arise. Even at this stage, it must be pointed out that unlike the case before the Apex Court involving the non-attendance of the Counsel to argue the appeal in respect of which nothing more need or required to be done by the client, in this case before us it could not be the same with the Counsel inasmuch as being a proceeding at a trial stage it is the appellants who should have taken care to either offer themselves as witnesses or produce the relevant evidence oral and documentary and it would be a futile attempt to entirely find fault with the Counsel who was appearing in the case. We also find that there is no material before us or before the learned Single Judge to disbelieve the stand taken by the Counsel, who was appearing for the appellants in making the endorsement before the Trial Judge that inspite of several reminders the appellants have not turned up to proceed with the matter further constraining himself to report to instructions. It is not as though the Counsel has been taken to task in any permissible manner by the appellants or that any of them entered into box to depose to the facts in support of the said assertion contra to the one made by the Counsel in open Court and in making such a record by way of endorsement. It is in this context that the absence of oral evidence of the appellants atleast at the application stage to prove their lapse assumes great significance.
9. In Ali Mohd. v. An Advocate AIR 1960 Allahabad 660, a Full Bench of
the said Court had an occasion to deal with the case arising under the Bar Council
Act, 1926 and the Legal Practitioners’ Act, 1879. The learned Judges of the Full
Bench observed that an advocate who accepts instructions to act for a client is bound to do so even if he has not received his fee wholly or in part. We see no relevance of the said case to the case on hand, since there is no material before us or on record to show that the reporting of no instructions in this case was on the ground of non-payment of fee to the Counsel.
10. The claim of the appellants for the relief of setting aside the award passed against them in their absence in this application under Order 9, Rule 13, C.P.C., in our view, has been considered by the Trial Court in its proper perspective and the reasons assigned therefor, to which reference has been made earlier cannot be said to be either irrelevant or unreasonable or amounting to any failure to properly exercise its discretion. The learned Single Judge of this Court also in our view has taken the correct view in this regard on the facts and circumstances of the case. This is a case where an over all view, as observed by the Supreme Court itself, has to be taken in order to ensure advancement of justice and advancement of justice does not mean only justice to one party. A case involving the death of breadwinner in the family filed for compensation by the orphaned wife and minor child and the disturbed parents in the year 1985 has been specially listed in 1989 June for hearing. It is not as though on the very same day there was an order finally passed awarding compensation. The proceedings were being adjourned from time-to-time oh several dates even thereafter before the arguments were heard on 28.7.1989 and the matter was reserved for orders. The Counsel who had reported no instructions had no axe to grind personally against the appellants nor there is any material worth credence to even think that the Counsel had any grievance except the failure on the part of the appellants to respond to the information claimed to have been sent by him to come to defend the matter and participate in me trial by producing the necessary oral and documentary evidence, to be adduced in the case. The suggestion that the Counsel had adverse interest on account of his appearing for the other respondent, Insurance Company also does not appeal to us as of any merit. Assuming that apparently in the matter of sharing of liability there was any likelihood of such contingency it would be at the final stage after awarding the compensation and on fixing the guilt for the accident since upto that stage the Insurance Company and the insured have a common cause and as a matter of fact on its lapse if any in proving that the driver of the vehicle and the owner acted in a responsible manner and was not really guilty of gross negligence on account of which the accident has occurred, the liability automatically fastens on the Insurance Company also and therefore, we are unable to appreciate that for the trial of the petition at that initial stage there could have been any scope for even assuming that there was any conflict of interest. Not that alone, but if that be the position, it passes beyond compensation as to how and as to why the appellants engaged the same Counsel. Taking into account all these aspects, we are constrained to observe that the appellants have not only been recklessly indifferent in effectively participating in the proceedings by letting in proper evidence but have come up with a belated move to unsettle the award passed in favour of the family of the victim unmindful of the loss and damage or the inconvenience and suffering that may be caused at this point of time to the claimants. Taking into account all these aspects, we are of the view that real and substantial justice has been rendered by dismissing the application and we are of the view that interest of justice would have, if at all, failed only if such attempts of the appellants have been countenanced by Courts. Consequently, on merits we are very much convinced and satisfied that the appellants have failed to not only show sufficient cause for their absence in effectively participating in the proceedings at the trial stage but also miserably failed to show sufficient cause for the lapse in approaching the Court and their version that they, came to know of the award only on receipt of the notice in the execution petition could not be easily believed and if that be the position also, even then it would only demonstrate their recklessness and indifference to the Court proceedings to which they were already parties and in which they have filed counter statement. Consequently, we see no reason to take a different view from the one taken by the learned Trial Judge or the learned Single Judge on the facts and in the circumstances of the case.
11. It becomes necessary for us to advert to another aspect addressed to us by the learned Counsel that the learned Trial Judge was not right in making it as a point for rejecting the application on the ground that no application under Section 5 of the Limitation Act was actually filed for condoning the delay. While relying upon the decision in Meghraj v. Jesraj , it has been contended that an application for condonation under Section 5 is not a must for the Court to consider such a claim for condonation of the delay. That was a case wherein an application filed under Order 9, Rule 9, C.P.C. came to be summarily dismissed in the absence of an application under Section 5 of the Limitation Act, It is in such circumstances, Ramaprasada Rao, J. as the learned Judge then was, expressed the view that if under explainable circumstances an appeal or an application is filed but without a formal or a written application for excusing the delay in presentation of the same, then the Court should afford a reasonable opportunity to the party to mend matters to avoid miscarriage of justice. This is not the same to say that even in the absence of a formal application filed under Section 5 of the Limitation Act for condoning the delay explaining the reasons therefor and if need be substantiating such reasons even by letting in evidence, straightaway by arguing the matter, the claim for condonation need be countenanced. Accepting such a proposition would lead to astounding and startling results throwing the entire system/administration of justice out of gear. That apart, we are of the view that this is not a case where the appellants could claim to have been taken by surprise by such plea. When they have filed their application under Order 9, Rule 13, C.P.C. a counter affidavit has been filed by the claimants/ respondents and in paragraph 7 of the counter affidavit if is stated that the affidavit does not disclose any reasons to treat the award as an ex-parte award and the petitioners have not even filed a petition to condone the delay. The horse can be taken to the water but cannot be compelled to drink the water. Likewise, in spite of such a specific issue raised in the counter affidavit, if the appellants have been once again so indifferent and negligent even at that stage in not filing an application for condonation, this Court should not entertain even a submission from the Counsel that the absence of an application under Section 5 of the Limitation Act is no bar for considering such a claim.
12. For all the reasons stated above, we do not see any merit whatsoever in the appeal. The appeal fails and shall stand dismissed with costs.