Holding

There is no absolute rule that a party may disown its advocate to set aside an ex‑parte decree; the defendant’s reliance on counsel’s advice is insufficient, and the ex‑parte decree stands.

Summary

The plaintiff, Salil Dutia, sued T.M. & M.C. Pvt. Ltd. for ejectment on grounds of rent default and personal occupation. The suit, after a seven‑year pendency, was scheduled for final hearing on 9 June 1988, but the defendant failed to appear, relying on alleged advice from its counsel that it need not be present until two interlocutory applications were disposed. Consequently, the trial court passed an ex‑parte decree and dismissed the defendant's application under Order 9 Rule 13 of the CPC to set it aside, a decision upheld by the Calcutta High Court. The High Court later reopened the matter after noting it had omitted the Supreme Court’s decision in Rafiq v. Munshi, and allowed the appeal, setting aside the ex‑parte decree. On appeal, this Court held that there is no absolute rule permitting a party to disown its advocate to obtain relief, especially where the party is an educated corporate entity that could have foreseen the consequences of non‑appearance; the defendant’s claim of counsel’s advice was deemed an after‑thought, and the original ex‑parte decree was restored.

Issues considered

The applicability of Order 9 Rule 13 CPC to set aside an ex‑parte decree where non‑appearance is attributed to the advocate’s advice.
Whether the principle in Rafiq v. Munshi (that a party should not suffer for an advocate’s default) extends to a corporate defendant.
Whether the High Court erred in reopening its judgment after failing to consider the Supreme Court precedent.
Whether an absolute rule exists allowing a party to disown its advocate to obtain relief.

Legislation cited

Code of Civil Procedure, 1908s. Order 9 Rule 13, s. Section 151

Subjects

ex‑parte decreeOrder 9 Rule 13advocate's adviceagency principlecorporate litigantcivil procedureRafiq v. Munshiset aside decree

Judgment

A SALILDUTIA
v.
T.M. AND M.C. PRIVATE LTD.

FEBRUARY 5, 1993
B
(K. JAYACHANDRA REDDY AND B.P. JEEVAN REDDY, JJ.)

COde of Civil Procedure, 1908:

Order 9, Rule 13-Setting aside ex-parte decree against defen-
C dant-Cause for non-appean;nce-lmproper advice of advocate-Whether a
sufficient cause-Held: Cannot as a rule be accepted-f'arty cannot disown
its advocate and seek relief.

The suit filed by tbe appellant for ejecting the respondent-private
D limited company, from the suit premises, was decreed ex-psrte by tbe trial ~
court since neither the advocate nor the respondent-tenant, appeared .,.
when tbe case came up for final-hearing. Thereafter, tbe respondent-com·
pany filed an application to set aside tbe ex-psrte decree, stating tbat tbe
non-appearance of tbe respondent-tenant was due to tbe advice tendered
by tbe advocate-on:record to tbe effect tbat tbe respondent-tenant need
E not be present at the hearing of tbe suit till the disposal of tbe two
interlocutory applications filed by the respondent-tenant. According to It, _-'.
there was sufficient cause to set aside the ex-parte decree within tbe
meaning of Order 9 Rule 13 C.P.C. The trial court dismissed the said
application. The appeal against tbe trial court's order was also dismissed
F by a Division Bench of the High Court. However, before the judgment was
signed by tbe learned Judges, an application was moved by tbe respon·
dent-tenant for alteration or modification and/or reconsideration of the
judgment on tbe ground tbat tbe respondents' counsel could not bring to
tbe notice of tbe Court, the decision of the Supreme Court in the case of
G Rafiq and Anr. v. Munshi/al and Anr., AIR 1981 SC 1400 which supported
respondent-tenant's case. This was opposed by the appellant on tbe
ground tbat once the judgment was pronounced in open court, it was final
and that matter could not be reopened, just because a relevant decision
was 11ot brought to the notice of tbe court. However, the Division Bench
reopened tbe case on the ground tbat technicalities should not be allowed
H to stand in tbe way of doing justice to tbe parties and allowed the appeal,
794
SAUL DUTIA v. T.M & M.C. (P) LID. 795

relying. on the decision. A

'y' Io the appeal before this Court on behalf of the appellant it was
contended that the decision in the case of Rafiq did not support the
respondents' case and the High Court had erred in holding othehrise,
inasmuch as the respoodent·teoaot in the instant case was a private
limited company, managed by persons who were not only well-educated B
but were practical businessmen, unlike the appellant in the case of Rafiq,
who was a rustic innocent villager, placing his entire trust lo his advocate.

On behalf of the respoodeot.tenaot ii was submitted that when the
High Court had applied and acted upon a decision of this Court, it would
not be proper to set aside lhei~ order under Article 136 of the Cooslitu·
c
lion, and that the respondent-company implicitly trusted their advocate
and acted according to his advice and should not be penalised therefore.

Allowing the appeal, this Court,
D
HELD : 1.1. The advocate is the agent of the party. His acts and
statements made within the limits of authority given to him, are the acts
and statements or the principal, i.e., the party who engaged him. It is true
that in certain situations, the Court may, in the interest of justice, set
aside a dismissal order or an ex·parte decree notwithstanding the
negligence and/or misdemeaoour or the advocate where ii finds that the
E
-~ client was an innocent litigant, but there is no such absolute rule that a
party can disown its advocate at any time and seek relief. No such absolute
immunity can be recognised. Such an absolute rule would make the work-
Ing ofthe system extemely difficult. [801G]
F
1.2. The instant case was an on-going suit posted for final hearing
after a lapse of seven years or its institution. It was not a second appeal
~ filed by a villager residing away from the city, where the Court is located.
~ The respondent is also not a rustice ignorant villager but a private limited
company with its head-office at the place where the court is located and
managed by educated businessmen who know where their interest lies. It G
is evident that when their interlocutory applications were not disposed of
before taking up the suit for final hearing, they felt piqued and refused to
appear before the court. May be, it was part of their delaying tactics as
>-- alleged by the appellant. May be not. But one thing is clear - they chose to
non-cooperate with the court. Having adopted such a stand towards the H
7% SUPREME COURT REPORTS [1993) 1 S.C.R.

A Court, the respondent has no right to ask its indulgence. Putting the
entire blame upon the advocate and trying to make it out as if they were
totally unaware of the nature or significance of the proceedings is a theory ·~
which cannot be accepted and ought not to have been accepted. [802A-C)

1.3. It is difficult.to believe that the respondents implicitly believed
B their advocate's advice. Being educated businessmen they would have
known that non-participation at the final hearing of the suit wonld neces·
sarily result in an adverse decision. This Court is not prepared to believe
that such an advice was in fact tendered by the advocate. No advocate
worth his salt would give such advice to his client. Secondly, there are
c several contradictions in his deposition. Therefore, the story set up by the
respondent-company in its application under Order 9 Rule 13 is an
after-thought and ought not to have been accepted by the Division Bench,
more particularly, when it had rejected the very case in its earlier judg·
-
ment. [800G-H, 801A,E]

D Rafiq and Anr. v. Munshi/a/ and Anr., A.I.R. 1981 S.C. 1400, distin·
guished.

CIVIL Af'PELLATE JURISDICTION : Civil Appeal No. 429 of
1993.

E From the Judgment and Order dated 3.3.92 of the Calcutta High
Court in A.0.0. No. 1036 of 1990. ,.k.

A.K. Ganguli and H.K. Puri for the Appellant.

N.S. Hegde, Anil Agrawala and L.P. Agrawala for the Respondents.
F
The Judgment of the Court was delivered by

B.P. JEEVAN REDDY, J. Heard the counsel for the parties. Leave ~~

granted.
G The appeal is preferred by the plaintiff against the judgment and
order of a Division Bench of the Calcutta High Court allowing the appeal
preferred by the respondent/defendant. The appeal before the High Court
was directed against an order of the City Civil Court, Calcutta dismissing
an application filed by the defendant to set aside the ex-parte decree
H passed against him, under Order 9 rule 13 of the Civil Procedure, Code.
SALIL DUITA v. T.M & M.C. (P) LID. [JEEVAN REDDY, J.] 797

The relevant facts may be noticed briefly. A

The plaintiff/appellant filed a suit for ejecting the defendant-tenant
on the ground of default in paying rent and also on the ground that the
such premises are required for his own use and occupation. The suit was
posted for final hearing on June 9, 1988 - seven years after its institution. B
On an earlier occasion, the defendant had filed two interlocutory applica-
tions, one under Order 14 rule 5 and the other under Order 6 rule 16
C.P.C. On 19th May, 1988 the City Civil Court had passed an order on the
-y said applications observing that. the said applications shall be considered
at the final hearing of the suit. According to the defendant (as per his
statement made in the application filed by him for setting aside the ex-parte C
decree) his advocate advised him that he need not be present at the hearing
of the suit on 9.6.1988, and thereafter till the applications filed by him
under Order 14 rule 5 and Order 6 rule 16 C.P.C. are disposed of. Be that
as it may, on 9th June, 1988, the advocate for the defendant prayed for an
adjournment till the nexi day. It was adjourned accordingly. On 10th June, D
neither the advocate for the defendant nor the defendant appeared, with
the result the defendant was set ex-parte. Hearing of the suit was com-
menced and concluded on 11th June, 1988. The suit was posted for delivery
of judgment to 13th June, 1988. On 11th June, 1988, an application was
made on behalf of the defendant stating the circumstances in which his
advocate had to retire from the case. This application, however, contained E
no prayer whatsoever. The suit was decreed ex-parte on 13th June, 1988.
·Thereafter the defendant filed the application to set aside the ex-parte
decree. In this application he referred to the fact of his filing two inter-
locutory applications aforesaid, the order of the court thereon passed on
19th May, 1988 and then stated "due to the advice of the learned advocate- F
on-record that your petitioner need not be present at the hearing of the
suit on 9.6.1988 and thereafter till the disposal of the application filed
under Order 6 rule 16 and Order 14 rule 5 read with Section 151 of the
Code of Civil Procedure in the above suit," the defendant did not appear
before the Court. It was stated that Mr. Ravindran the Principal Officer of G
the defendant Company was out of town on that date. It was submitted that
because the defendant had acted on the basis of the advice given by the
advocate-on-record of the defendant, there was sufficient cause to set aside
the ex-parte decree, within the meaning of Order 9 rule 13 C.P.C. The Trial
Court dismissed the said application against which an appeal was preferred
by the defendant to the Calcutta High Court. The appeal was heard by a H
798 SUPREME COURT REPORTS (1993] 1 S.C.R.

A Division Bench and judgment pronounced in open court on 8.7.1991 dis-
missing the appeal. However, it appears, before the judgment was signed
by the learned Judges constituting the Division Bench, an application was
moved by the defendant for alteration or modification and/or reconsid~ra
tion of the said judgment mainly on the ground that the defendants' counsel
could not bring to the notice of the Division Bench the decision of this
B Court in Rafiq and another v. Munshi/a/ and another, AIR 1981 SC 1400
and that the said decision clearly supports the defendants, case. The
counsel for the plaintiff opposed the said request. He submitted that once
the judgment was pronounced in open court, it was final and that matter
cannot be reopened just because a relevant decision was not brought to
C the notice of the Court. After hearing the counsel for both the parties, the
Division Bench reopened the appeal on the ground that "technicalities
should not be allowed to stand in the way of doing justice to the parties."
The Bench observed that when they disposed of the appeal, their attention
was not invited to the decision of this Court in Rafiq v. Munshi/a/ and that
D in view of the said judgment they were inclined to reopen the matter. The
Division Bench was of the opinion that "after a judgment is delivered by
the High Court ignoring the decision of the Supreme Court or in dis-
obedience of a clear judgment of the Supreme Court, it would be treated
as non-est and absolutely without jurisdiction.......when our attention has
been drawn that our Judgment is per incuriarn, it is our duty to apply this
E decision and to hold that our Judgment was wrong and liable to be
recalled." 0Ne express no opinion on the correctness of the above premise
since it is not put in issue in this appeal). Accordingly, the Division Benclt
heard the counsel for the parties f'd by its Judgment and Order dated 3rd
March, 1992 allowed the appeal mainly relying upon the decision of this
F Court in Rafiq.

In fhis appeal Shri Ganguli, learned counsel for the appellant/plain-
tiff submitted that the decision in Rafiq does not support the defendant's
case and that the Calcutta High Court has erred in holding otherwise. It is
G submitted that the defendant in this case is a private limited company,
managed by persons who are not only well-educated but are practical
businessmen unlike the appellant in Rafiq who was a rustic innocent
villager placing his entire trust in his advocate. On the other hand, Shri
Santosh Hegde, the learned counsel for the defendant/respondent sub-
mitted that when the High Court has applied and acted upon a decision
H of this Court, it would not be proper to set aside their order under Article
SALIL DUTIA v. T.M & M.C. (P) LID. [JEEVAN REDDY, J.] 799

136 of the Constitution. He submitted that the defendant/company implicit- A
ly trusted their advocate and acted according to his advice and should not
'T" be penalised therefor.

Since the judgment under appeal is exclusively based upon the
decision of this Court in Rafiq it is necessary to ascertain what precisely
does the said decision say. The appellant Rafiq had preferred a second B
appeal in the Allahabad High Court through an advocate. His advocate
was not present when the second appeal was taken up for hearing with the
-r- result it was dismissed for default. The appellant then moved an application
to set aside the order of dismissal for default which was dismissed by the

- High Court. The correctness of the said order was questioned in this Court.
The matter came up before a Bench comprising DA. Desai and Baharul
Islam, JJ. DA. Desai, J. speaking for the Bench observed thus:

"The disturbing feature of the case is that under our
present adversary legal system where the parties generally
c

D
appear through their advocates, the obligation of the par-
ties is to select his advocate, brief him, pay the fees
demanded by him and then trust the learned advocate to
do the rest of the things. The party may be a villager or
may belong to a rural area and may have no knowledge
of the Court's procedure. After engaging a lawyer, the E
party may remain supremely confident that the lawyer will
look after his interest. At the time of the hearing of the
appeal, the personal appearanc:c of the party is not only
not required bot hardly useful. Therefore, the party having
done everything in his power to effectively participate in F
the proceedings can rest ass!ll'.ed 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 watch-dog of the advocate that the latter appears in
the matter when it is listed It is no part of his job."
G
It was then argued by the counsel for the respondent in that appeal
that a practice has grown up in the High Court of Allahabad among the
lawyers to remain absent when they did not like a particular bench and that
the absence of the appellant's advocate in the High Court was in accord-
ance with the said practice, which should not be ~1'.~uraged. While H
,.
•·
800 SUPREME COURT REPORTS [1993) 1 S.C.R.

A expressing no opinion upon the existence or justification of such practice,
the learned Judge observed that if the dismissal order is not set aside "the
only one who would suffer would not be the lawyer who did not appear -.,./
but the party whose intere.st he represented,' and then made the following
further observations:

B "The problem that agitates us is whether it is proper
that the party should suffer for the inaction, deliberate
omission, or misdemeanour of his agent. The answer ob-
viously is in the negative. May be that the learned advocate y
absented himself deliberately or intentionally. We have no
c material for ascertaining that aspect of the matter. We say
nothing more on that aspect of the matter. However, we
cannot be a party to an innocent party suffering injustice
merely because his chosen advocate defaulted."
-
D The question is whether the principle of the said decision comes to --,~

the rescue of the defendant respondent herein. Firstly, in the case before
us it was not an appeal preferred by an outstation litigant but a suit which
was posted for final hearing seven years after the institution of the suit. The
defendent is a private limited company having its registered office at
Calcutta itself. The persons il)charge of the defendant-company are not
E rustic villagers nor they are innocent illiterates unaware of Court proce-
dures. Prior to the suit coming up for final hearing on 9th June, 1988 the
,.___
defendant had filed two applications whereupon the Court ordered that
they will be considered at the time of the final hearing of the suit. The

F
plaintifrs case no doubt is that the said applications were part of delaying
tactics being adopted by the defendant-tenants with a view to protract the
-
suit. Be that as it may, the defendant thereafter refused to appear before
the court. According to the defendant, their advocate advised them that
until the interlocutory applications filed by them are disposed of, the
defendent need not appear before the Court which menns that the defen-
----
dants need not appear at the final hearing of the suit. It may be remem-
G bered that the Court proposed to consider the said interlocutory
applications at the final hearing of the suit. It is difficult to beliel'e that the
defendants implicitly believed their advocate's advice. Being educated
businessmen they would have known that non-participation at the final ·-'""
hearing of the suit would necessarily result.in an adver.se decision. Indeed.
H we are not prepared to believe that such an advice was in fact tendered by
SAUL DUTIA v. T.M & M.C. (P) LTD. [JEEVAN REDDY, J.] . 801

the advocate. No advocate worth his salt would give such advice to his A
client. Secondly, the several contradictions in his deposition which are
'y
pointed out by the Division Bench in the impugned order go to show that
the whole story is a later fabrication. The following are the observations
made in the Judgment of the Division Bench with respect to the conduct
of the said advocate: 'we found that the said learned advocate conducted
B
the proceedings in a most improper manner and that his absence on 10th
June, 1988 and on· subsequent date was not only discourteous but possibly
,... a dereliction of duty to his client... ..... the learned advocate had forgotten
his professional duty in not making inquiry to the Court as to what
happened on JOth, J.lth and 13th June, 1988........the learned advocate acted
in a most perfunctory manner in the matter and the learned advocate dealt c
- with the matter in a most unusual manner. We have also found that the
said learned advocate had made serious contradiction in the deposition
before the court below. The learned advocate in his deposition stated that
he did not file an application for adjournment on 9th June, 1988. But from
-r the record it was evident that it was on the basis of the application filed
on 9th June, 1988, the case was adjourned for cross-examination of the
D
witnesses whose examination was called on the next date.' The above facts
stated in the deposition of the advocate show that he indeed made an
application for adjournment on the 9th June, 1988 to enable him to cross
examine the witnesses on the next date. Therefore, his present stand that
he advised his client not to participate in the trial from and including 9th E
._..l_. June, 1988 onwards is evidently untrue. We are, therefore, of the opinion
that the story set up by the defendant in his application under Order 9 rule
13 is an after-thought and ought not to have been accepted by the Division
Bench in its order dated 3rd March, 1992 • more particulary when it had
rejected the very case in its earlier Judgment dated 8.7.1991. F

___. ......._ The advor.ate is the agent of the party. His acts and statements, made
within the limits of authority given to him, are the acts and statements of
the principal i.e. the party who engaged him. It is true . fbat in certian
situations, the Court may, in the interest of justice, set aside a dismissal
order or an ex-parte decree notwithstanding the negligence and/or mis- G
demeanour of the advocate where it fmds that the client was an innocent
litigant but there is not such absolute rule that a party can disown its
?-- advocate at any time and seek relief. No such absolute immunity can be
recognised. Such an absolute rule would make the working of the system
extremelv difficult. The observations made in Rafiq must be understood in H
802 SUPREME COURT REPORTS (1993) 1 S.C.R.

A the facts and circumstances of that case and cannot be understood as an
absolute proposition. As we have mentioned hereinabove, this was an
on-going suit posted for final hearing after a lapse of seven years of its
institution. It was not a second appeal filed by a villager residing away from
the city, where the Court is located. The defendant is also not a rustic
B ignorant villager but a private limited company with its head-office at
Calcutta itself and managed by educated businessmen .who know where
their interest lies. It is evident that when their applications were not
disposed of before taking up the suit for final hearing they felt piqued and
refused to appear before the court. May be, it was part of their delaying
· tactics as alleged by the plaintiff. May be not. But one thing is clear - they
C' 'chose to non-cooperate with the court. Having adopted such a stand
towards the Court, the defendant has no right to ask its indulgence. Putting
the entire blame upon the advocate and trying to make it. out as if they
were totally unaware of the nature or significance of the proceedings is a
theory which cannot be accepted and ought not to have been accepted.

D For the above reasons, the appeal is allowed. The order of the 1
Division Bench of the Calcutta. High Court dated 33.1992 is set aside and
its order dated 8.7.1991 is restored. The company-defendant shall bear the
costs. of the appellant in this appeal which are assessed at Rs. 5,000.

N.P.V. Appeal allowed.