JUDGMENT
P. Sathasivam, J.
1. An interesting and important question arises in this appeal. The appellants who did not appear in Court when Appeal Suit No. 55 of 1998 on the file of Subordinate Judge, Srivilliputhur was called and decided against them, have filed an unnumbered Interlocutory Application under Order 41, Rule 21 of the Code of Civil Procedure to set aside the judgment and decree passed on 30-10-98 and rehear the appeal by giving an opportunity to them to contest the same.
2. The brief facts are stated hereunder:– According to the appellants, the suit property bearing Door No. 76-B, Sevabatti Naidu street, Rajapalayam is under the possession and enjoyment of the first appellant herein right from the year prior to 1964 and he had put superstructure thereon. The respondents without any right or title whatsoever filed O.S. No. 233 of 1995 on the file of District Munsif, Srivilliputur, against the first appellant and his wife Balakrishnammal for declaration of title and for possession in respect of the suit property. During the pendency of the suit, his wife died and his children as the legal representatives of the 2nd defendant were brought on record as defendants 3 to 6. All of them contested the suit contending that the plaintiffs have no title and that they have derived title by adverse possession and the suit is barred by res judicata. The Principal District Munsif. Srivilliputhur, by judgment and decree dated 5-12-97 dismissed the suit. The respondents herein preferred an appeal in A.S. No. 55 of 1998 before the lower appellate Court. Due to kidney ailment, the first appellant herein was admitted in Government Hospital and after operation on 21-7-98 he was discharged on 28-8-98 with an advice to take bed-rest for three months. After getting permission from his doctor, he met his counsel who appeared for them in A.S. No. 55/98 on 10-11-98 and he was informed that when the said appeal came up for hearing on 22-10-98, his counsel reported ‘No instructions’ and an ex parte decree was passed on 30-10-1998 by the Principal Subordinate Judge, Srivilliputhur. After his counsel reporting ‘No instructions’ they were not served with any notice of hearing. Immediately on 10-11-98 itself, he filed an application to set aside the ex parte decree along with Medical Certificate. The learned Subordinate Judge, Srivilliputhur without even ordering notice to the respondents on 17-2-99 rejected his application. Aggrieved by the said Order, the appellants have preferred the above Civil Miscellaneous Appeal before this Court.
3. The appellants herein have filed the said application before the lower appellate Court to set aside the ex parte decree dated 30-10-88 under Order 41, Rule 21 of the Code of Civil Procedure. The learned Subordinate Judge, Srivilliputhur, after holding that the appellants herein/respondents therein were not set ex parte, rejected their stand and dismissed their applications. The learned Judge has also expressed that in the light of the fact that their counsel reported ‘No instructions’ and the appeal having been disposed of on merits, the only course would be is to file a second appeal before this Court. The relevant provision under which the appellants have filed appropriate petition is Order 41, Rule 21, CPC, which is reproduced hereunder :–
“Order 41. Rule 21(1), Re-hearing on application of respondent against whom ex parte decree made.– Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfied the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fir to impose upon him.
(2) The provisions of Section 5 of the Indian Limitation Act, 1908 shall apply to applications under Sub-rule (1).”
4. Learned counsel appearing for the appellants would contend that the judgment and decree dated 30-10-98 passed in A.S. 55/98 by the Sub-Court. Srivilliputhur is an ex parte decree in view of the fact that the counsel for the respondents therein reported no instructions and no notice was sent to the respondents therein thereafter for hearing. Accordingly, they are justified in filing a petition under Order 41. Rule 21 of the Code of Civil Procedure, even though the word ‘ex parte’ was not mentioned in the judgment and decree referred to above. A perusal of the judgment of the lower appellate Court shows that even though the appellants/ respondents therein were represented by a counsel, at the time of the hearing, their counsel represented “no instructions”; accordingly the lower appellate Court after hearing the arguments of the counsel for appellant disposed of the appeal on merits.
No doubt, even after the information furnished by the counsel for respondents therein, the lower appellate Court without ascertaining the reason for reporting no instructions and without intimation to the respondents therein, proceeded with the appeal after framing necessary points and ultimately allowed the appeal and granted decree as prayed for after setting aside the decree of dismissal passed by the trial Court.
5. Now I shall consider whether the decree of the lower appellate Court is to be treated as an ex parte decree and the respondents therein as entitled to any notice of intimation from the lower appellate Court before proceeding with the appeal.
6. Order 17. Rules 2 and 3, CPC, are applicable in so far as the absence of the parties at the trial stage. As per Rule 2, where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, it is open to the court to dispose of the suit in one of the modes directed in that behalf by order IX or make such other order as it thinks fit. As per Explanation to Rule 2, it is clear that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, it is open to the Court to proceed with the case as if such party were present. As per Rule 3, where any party to suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, it is open to the Court notwithstanding such default, if the parties are present, proceed to decide the suit forthwith, or if the parties are, or any of them is absent proceed under Rule 2. No doubt, the procedure prescribed in Rules 2 and 3 is applicable to proceedings in a suit. The procedure as stipulated in Order 17, Rules 2 and 3. CPC has to be followed only if the parties to the suit fail to appear. The steps to be provided is mentioned in Order 41. Rule 21.
7. Now I shall consider various decisions decided on this issue. Even before the Court below, a decision of this Court reported in Assan Kutty v. Kunhi Moideen Kutty, (1956) 1 Mad LJ 496 has been cited. In that case, the suit was filed for redemption and for recovery of possession. The District Munsif upheld the contention of the defendants; accordingly negatived the claim of the plaintiff. In the appeal filed by the plaintiff, the defendants had engaged a counsel who, however, reported no instructions on 15-3-1950 and the learned District Judge disposed of the appeal ex parte reversing the finding of the District Munsif and holding that the suit document was a mortgage. He granted the plaintiff a decree for redemption and recovery of possession. On 215th March, 1950, the three defendants filed LA. under appeal accompanied by an affidavit by one of them highlighting the reason for their absence on 15th March, 1950. The learned District Judge has held that there was no satisfactory explanation. An argument was advanced before the learned, Judge that the case is governed by Order 41, Rule 21 which adopting the language of Order 9, Rule 13, in the case of suits lays down that where an appeal is heard ex parte and judgment pronounced against the respondent, he may apply to the appellate Court to re-hear the appeal and the Court shall do so if he satisfies it that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing. Mack, J. has observed as follows :–
“When an advocate reports no instructions, it is very difficult to say precisely what he means. Instructions may vary in nature and generally have a direct connection with the fees paid to the advocate. The ordinary practice. I believe, and the learned Advocates do not dispute this, is that only half the fee is paid when the advocate is engaged for the purpose of the appeal and the balance of the fee Is paid to him later. It may sometimes, and it probably does often, happen that appeals are filed by advocates on even a smaller original fee. It has also to be remembered that rural clients live in distant villages unserved by any responsible legal service and that there is a big gulf in distance between them and the urban lawyer often bridged by very uncertain and rusty communications.”
Again the learned Judge has observed thus. ……The learned District Judge, however, in this case merely proceeded on the report of the learned advocate reporting no Instructions. When an advocate makes a report to this effect, it can of course in the large majority of cases be presumed that the client had made no response to more than one call for the balance of his fees. In cases of this kind a final opportunity may well be afforded in the form of a Court direction to the advocate to send a registered letter to his defaulting client that he will report no instructions to the Court if he does not instruct him or himself attend Court on the adjourned date. It is not possible to lay down any hard and fast rule. I remember very rare occasions on which I have passed an order in appeal in such a case directing the personal appearance in Court of the respondent whose advocate reported no instructions with results satisfactory to both advocate and client. A human approach of this kind by Courts instead of disposing of appeals ex parte and applications to rehear them too strictly in accordance with the requirements of Order 41, Rule 21, which taken literally has no real relation to conditions which now exist, will do something to bridge the gulf between the urban lawyers and the village, which the Bench and the Bar should do their best to achieve.”
After holding so, the learned Judge restored the appeal and directed expeditious disposal by the District Judge. Even though the said decision supports the case of the appellant, the Court below distinguished the said decision stating that the respondents therein were not set ex parte and proper remedy for them is to file an appeal. The said conclusion runs counter to the decision referred to above.
8. Before considering the other decisions of the Apex Court, two more decisions of this Court, which arose under Order 17, Rules 2 and 3 of the Code of Civil Procedure, have been cited. The first one is in the case of Nataraja Iyer v. Nacharammaal, reported in (1997) 1 Mad LJ 46. In that case, the suit was instituted for recovery of a sum of Rs. 540/- due as arrears of rent before the Pondicherry Court. The suit was contested by the defendant. Subsequently, at the stage of the trial, the defendant was absent and the counsel for the defendant was also absent on 24th January, 1975. Instead of setting the defendant ex parte and passing an ex parte decree, the learned Principal Subordinate Judge of Pondicherry purported to decree the suit as prayed for under Order 17, Rule 3, Civil Procedure Code, after P.W. 1 was examined and Ex. A-1 was marked. He did not even hold that the claim had been proved. Subsequently the petition for setting aside the ex parte decree was filed before the same learned Subordinate Judge. He refused to set aside the ex parte decree because he took the view that the suit has been decreed under Order 1-7, Rule 3, CPC. and that, therefore, the petition under Order 9, Rule 12, CPC, is not maintainable. In such a circumstance, Suryamurthy. J. after referring to earlier decisions of this Court, has concluded thus :–
“This view of the learned Subordinate Judge cannot be sustained. Order 17, Rule 3, Civil Procedure Code, applies only to cases where the parties are present. Where on the date of the trial the defendant is absent the Court cannot proceed under Order 17, Rule 3, but should proceed under Order 17, Rule 2, Civil Procedure Code, by setting the defendant ex parte and decreeing the suit after recording the evidence if the claim of the plaintiff is proved. The decree passed by the learned Subordinate Judge is in fact an ex parte decree even though he has purported to pass a decree under Order 17, Rule 3, Civil Procedure Code.”
9. In the case of Ramakrishnan v. Raju, reported in (1990) 1 Mad LJ 64), Bellie, J. has arrived at the following observation :–
“…..As per (Order 17), Rule 2 if the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. As per the explanation given under Rule 2, where the evidence or a substantial portion of the evidence of the party who fails to appear has been recorded, the Court may, in its discretion proceed with the case as if such party were present. This explanation is not attracted to our case because the defendant has not let in any evidence. Therefore, under Rule 2 the Court has to dispose of the suit in any one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit. Here itself we may dispose of the expression “such other order as it thinks fit”. This expression does not mean that the Court can decide the case on merits. It only means that the Court may proceed to adjourn the case to some other date or pass any such order. If the Legislature meant that by the said expression the Court can decide the suit on merits, it would have said so explicitly as it has stated in Rule 3(a) that if the parties are present the Court may proceed to decide the suit. Hence it follows that the only course the Court should have followed is to dispose of the suit in any one of the modes directed in that behalf by Order 9.
Now adverting to Order 9, Rule 6 thereof relates to the procedure to be followed when the plaintiff appears and the defendant does not appear. In such a case, the Court may make an order that the suit be heard ex parte. Therefore, in the present case, when neither the defendant nor his counsel was present on the adjourned date, the defendant should have been set ex parte and then the suit be proceeded with.”
10. It is also worthwhile to refer a recent decision of Sampath J. reported in Narayana Gounder v. Devaki Ammal, . The said case arise in a second appeal filed by the first defendant in O.S. 278 of 1982 on the file of the District Munsif, Villupuram. The said suit was filed for declaration of title and possession. The appellant/first defendant filed a written statement and resisted the suit. The second defendant filed a written statement conceding that a decree could be passed as prayed for. At the time of trial the defendants remained ex parte and an ex parte decree was passed against them and in favour of the plaintiff/ first respondent. On appeal by the defendants, the suit was remanded for fresh disposal giving an opportunity to the defendants to contest the suit on merits. After remand the suit was taken up for trial on 4-11-1985 for the examination of the defendants and their witnesses. The case was adjourned to 25-11-1985. On that date, the defendant’s counsel reported no instructions, with the result they were set ex parte. However, the trial Court passed a judgment on merits observing that the plaintiffs witnesses were cross-examined by the defendants. The appellant and the third defendant Ranganathan Gounder filed appeal A.S. No. 92 of 1986 before the Sub-Court, Villupuram. The counsel for the appellants before the Sub-Court argued only for remission of the suit once again to the trial Court to give an opportunity to the defendants to examine their witnesses and themselves to prove their case. The learned Subordinate Judge having rejected the request on behalf of the defendants and dismissed the appeal, hence the second appeal has been filed. After referring to decisions of the Apex Court, reported in (1) Modula India v. Kamakshya Singh, ; (2) Malkiat Singh v. Joginder Singh, AIR 1998 SC 258, and (3) Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani, , since the parry was “at fault” and the reporting of “No instructions” was deliberate, the learned Judge dismissed the second appeal. In view of the factual conclusion arrived at by the learned Judge, namely, the “party was at fault” and the reporting of “No Instruction” by the counsel was deliberate, the learned Judge refused to apply “the principles of interests of justice” as applied by their Lordships in the Tahil Ram Issardas Sadarangani case, . Before considering the correctness of the decision of the learned Judge, it is useful to refer 2 decisions of the Supreme Court.
11. In (cited supra), in an identical circumstance and almost similar to our case. Their Lordships have observed that the interests of justice required, that a fresh notice for actual date of hearing should have been sent to the parties and set aside the order impugned therein. The appeal before the Supreme Court has arisen from the order of the High Court dated 15-3-74 dismissing in default the petition filed by the appellant-petitioner to set aside an award given in an arbitration proceedings. The application for restoration of the petition was also dismissed by the High Court on 24-4-74. Further appeal filed by the appellants was dismissed in limine by a Division Bench of the High Court by its order dated 5-8-74. The appellant’s petition for setting aside the award same up for hearing before Vimadalal, J. of the Bombay High Court on 15-3-74. Mr. N.V. Adhia, advocate appeared before the learned Judge on behalf of the petitioner. When the case reached for hearing on 15-3-74, Mr. Adhia appeared for the petitioners and stated that he had no instructions in the matter although he had informed the petitioners regarding the date of hearing of the petition. He requested for adjournment which was refused. Thereafter, Mr. Adhia was allowed to withdraw his appearance and since neither any counsel nor the petitioners in person were present, the petition was dismissed in default. The application for restoration was also dismissed by the learned Judge vide order dated April 24, 1974. The said order has been confirmed by the Division Bench. In such a circumstance, Their Lordships of the Supreme Court have observed as follows :–
“It is not disputed in the present case that on March 14, 1974 when Mr. Adhia, advocate withdrew from the case, the petitioners were not present in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adhia withdrew from the case, the interests of justice required, that a fresh notice for actual date hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer”.
After holding so, Their Lordships have set aside the order of the Division Bench and directed the High Court to re-hear and decide the Arbitration petition.
12. In the case of Malkiat Singh v. Joginder Singh, (1998) 1 Mad LW 9 : (AIR 1998 SC 258), (Judgments Today Volume 9 SC 642), after referring to the decision , cited supra, the Supreme Court has set aside the orders passed by the District Court as well as the High Court and remitted the case to the trial Court for disposal in accordance with law. In the case before the Supreme Court, pursuant to the criminal proceedings, the respondents before the Supreme Court have filed a suit in the Court of learned Sub-Judge, 1st Class, Samrala claiming damages from the appellants to the tune of Rs. 1,00,000/- for deprivation of the income to the family members which they used to get from deceased Harpal Singh. The claim in the suit was contested by the appellants. They filed their written statement and engaged a counsel to defend the suit. The trial Court, on the basis of the pleadings of the parties, framed a number of issues. After two witnesses for the plaintiffs in that suit had been examined and cross-examined, it transpires that, on 18-11-1991, learned counsel who had been engaged by the appellants therein for defending them in the suit, pleaded “no instructions” before the Court. As a result of the counsel pleading no instructions, the appellants were proceeded ex parte. On 8-2-1992, the learned trial Court passed an ex parte decree against the appellants. The appellants went to enquire about the proceedings in the case from their counsel. On 6-6-1992, on their enquiry, their counsel informed them that he had pleaded ‘no instructions’ as a result of which they were proceeded ex parte and the suit had been decree ex parte on 8-2-1992. The appellants then engaged another counsel and on 10-6-1992, filed an application under Order 9, Rule 13, CPC for setting aside the order dated 181-11-1991 and the ex parte judgment and decree dated 8-2-92. The trial Court dismissed the application filed by the appellants under Order 9. Rule 13, CPC on 22-1-1996. Their appeal failed before the learned District Judge on 18-10-1996. The High Court dismissed the Civil Revision Petition filed by them in limine on 13-12-96. Hence the present appeal by Special Leave before the Supreme Court. In such circumstances. Their Lordships of the Supreme Court have made the following observation :–
“6. There is no denying the fact that the appellants had engaged a counsel to defend them in the civil suit. The counsel for the appellants pleaded “no instructions” but the Court did not issue any notice to the appellants, who were admittedly not present on the date when their counsel reported no instructions in the Court. It is nobody’s case that the counsel informed them after he had reported no instructions to the Court. The appellants only came to know about the order dated 18-11-91 and the ex parte decree dated 8-2-1992 when they approached their counsel on 6-6-1992. It was within four days thereafter that the appellants filed an application under Order 9, Rule 13, CPC for setting aside the order dated 18-11-1991 and the decree dated 8-12-1992.
7. The appellants in their application clearly pleaded that they were neither careless nor negligent and as soon as they learnt about the ex parte decree dated 8-2-1992 and the order dated 18-11-1991, they filed the application to set aside the order and ex parte decree. A perusal of the record also reveals that the appellants were neither careless nor negligent in defending the suit. They had engaged a counsel and were following the proceedings. In this fact-situation, the trial Court, which had admittedly not issued any notice to the appellants after their counsel had reported no instructions, should have, in the interest of justice, allowed that application and proceeded in the case from the stage when the counsel reported no instructions. The appellants cannot, in the facts and circumstances of the case, be said to be at fault and they should not suffer. In taking this view, we are fortified by a judgment of this Court in Tahil Ram Issardas Sadarangani v. Ramchand Issardas Sadarangani, wherein the Bench opined :–
“It is not disputed in the present case that on March 15, 1974 when Mr. Adhia, advocate withdrew from the case, the petitioners were not present in Court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view when Mr. Adhia withdrew from the case, the interests of Justice required, that a fresh notice for actual date hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer.”
13. Both the above-referred decisions of the Hon’ble Supreme Court, namely, and (1998) 1 Mad LW 9 : (AIR 1998 SC 258) clearly show that if the counsel for the parties reports no instructions and in the absence of any proof to show as to whether the parties had the notice of hearing of the case on that day, the interests of justice required, that a fresh notice for actual date hearing should be sent to the parties. In other words, if it is established that the party was not at fault, he should not be made to suffer. In the words of Mack, J., (1956) 1 Mad LJ 496 cites supra, “a human approach of this kind by Courts instead of disposing of appeals ex parte and applications to rehear them too strictly in accordance with the requirements of Order 41, Rule 21, which taken literally has no real relation to conditions which now exist, will do something to bridge the gulf between the urban lawyers and the village, which the Bench and the Bar should do their best to achieve.” The said observation of Mack, J. is very relevant and the same has to be followed strictly when it is established that the party was not at fault. In the light of the conclusion by the Hon’ble Supreme Court in the above-referred two decisions as well as the earlier decision of this Court, the conclusion of Sampath, J., (cited supra) is confined to the particular case since even according to the learned Judge, the party in that case was at fault and the reporting of no instructions by the counsel was deliberate.
14. In the affidavit filed in support of the application filed before the lower appellate Court to set aside the decree dated 30-10-98, it is stated that due to illness of the first petitioner Vasu Thevar, he could not issue necessary instructions to their counsel on 22-10-1998. It is also stated that at the relevant time, he was having Kidney problem and taking treatment in the Government Hospital and also produced a certificate to that effect. According to him, even though he was discharged from the hospital on 28-8-1998, he was advised by his doctors that he must be in bed rest for three months. Thereafter, after consulting his doctor on 1-11-1998, he met his advocate and heard about the ex parte decree passed on 30-10-98. Thereafter, he filed the application. No doubt, learned counsel appearing for the respondents would contend that there is no explanation with regard to the steps taken by other parties. For this, it is stated that Vasu Thevar, father of the other applicants alone was pursuing the Court proceedings and in such a circumstance, they cannot be blamed for not sending any necessary instructions to their counsel. After going through the affidavit filed in support of the above application, I am satisfied that the applicants have made out a case for re-hearing the appeal in order to give an opportunity to them to contest the case of the plaintiffs. Accordingly, I hold that the appellants have made out a case for rehearing the appeal and the same has not been properly appreciated and understood by the Court below. The impugned order of the Court below is liable to be set aside.
15. In a matter like this, i am of the view that reporting of “no instructions” should not be for the asking and it should be permitted only if the counsel satisfies the judicial conscience of the Court that for the compelling reasons he was posed to plead “no instructions”. The Court should first satisfy itself that there is sufficient cause for the counsel to withdraw from the case and on such withdrawal being permitted the Court should order notice to the party whose counsel has reported “no instructions”. I am also of the view that it is the duty of the Court whether the matter is unrepresented without sufficient cause. If sufficient cause is shown, then it is the duty of the Court to issue notice to the person concerned informing him that his advocate has revoked his vakalath and thereby call upon him to take appropriate steps as necessary for him to defend his case. In my opinion, it is always the duty of a counsel before pleading no instructions to inform the party that for a particular reason he shall not be appearing in the case and may plead no instructions. The confidence deposed by parties in the counsel is most important. A person who is not present in Court pre-supposes that because of engagement of a counsel his interest would be properly looked after. It is the duty of a counsel to inform him before he proceeds to plead no instructions. In our case, when the matter is pending before the lower appellate Court, the counsel for respondents therein reported no instructions. In such a circumstance, it was the duty of the Court to enquire from the counsel concerned as to why and under what circumstances he was pleading no instructions. The Court cannot be a silent spectator to the scene which is staged in the Court. The judicial conscience of the Judge should always be satisfied before he permits a lawyer either to withdraw or to retire from the case. In the instant case, it does not appear from the proceedings that the learned Judge had taken all necessary steps to ensure that the counsel had sufficient reason not to appear for the party who engaged him or to plead no instructions. A party who reposes confidence and relies on counsel is entitled to be under the belief that his interest would be looked after properly by the counsel. A Judge ordinarily should not permit a lawyer to plead no instructions unless the lawyer satisfies the judicial conscience of the Court that for the compelling reasons he was posed to plead no instructions. I have already observed that there is nothing on record to show as to whether the appellants had the notice of hearing of the case on that date. As observed by Their Lordships of the Hon’ble Supreme Court when the counsel withdrew from the case, the interests of justice required, that a fresh notice for actual date of hearing should have been sent to the parties. Such recourse has not been followed by the Court below.
16. Under these circumstances, the order of the learned Subordinate Judge, Srivilliputhur in the un-numbered Interlocutory Application dated 17-2-1999 in A.S. No. 55 of 1998 is set aside. The appeal A.S. No. 55 of 1998 is restored on its file and the learned Subordinate Judge, Srivilliputhur is directed to dispose of the appeal afresh after affording sufficient opportunity to the respondents therein within a period of three months from the date of receipt of a copy of this Order. The Civil Miscellaneous Appeal is allowed. No costs. Consequently, C.M.P. No. 17824 of 1999 is closed.