MALKIAT SINGH AND ANR. versus JOGINDER SINGH AND ORS.

Citation: [1997] SUPP. 6 S.C.R. 139 · Decided: 02-12-1997 · Supreme Court of India · Bench: A.S. ANAND, V.N. KHARE · Disposal: Appeal(s) allowed
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Judgment (excerpt)

MALKIAT SINGH AND ANR. 
A 
v. 
JOGINDER SINGH AND ORS. 
DECEMBER 2, 1997 
IDR. A.S. ANAND AND V.N. KHARE, JJ.) 
B 
Code of Civil Procedure, 1908 : Order 9 Rule 13. 
Ex-pwte decree-Setting aside of-Suit for damages filed by respon-
dents (plaintiffs )-Suit contested by appellants (defendants )-Dwing heming C 
Counsel for appellants pleaded no instmctions-On that day appellants were 
not present in Cowt-Witlwut issuing notice to appellants Tlial Cowt 
proceeded ex-pa1te and passed ex-parte decree against the appellants-Ap-
plication filed by appellants jor setting aside ex- palte decree as soon as they 
came to know of it-Application dismissed by T1ial Cowt-Appeal dismissed 
by Dist1ict Judge-Revision dismissed by High Cowt in limine-Hence, ap- D 
peal before this Cowt-Held: appellants were neither careless nor negligent in 
defending the suit-They cannot be said to be at fault and therefore should 
not suff e1~Ex-parte decree set aside. 
Tahil Ram Issardas Sadarangani & Ors. v. Ramchand Issardas E 
Sadarangani & Anr., [1993] Supp. 3 SCC 256, relied on. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8474 of 
1997. 
From the Judgment and Order dated 13.12.96 of the Punjab & 
F 
Haryana High Court in C.R. No. 5145 of 1996. 
K.K. Mohan for the Appellants. 
Ujagar Singh and Ms. Naresh Bakshi for the Respondents. 
G 
The following Judgment of the Court was delivered : 
Special leave granted. 
_ 
The appellants were tried for the murder of one Harpal Singh and 
on conviction, were sentenced to suffer life imprisonment and to pay a fine H 
139 
140 
SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R. 
A of Rs. 1,000 by the learned Special Court, Ludhiana vide judgment dated 
1.4.1985. The respondents, it appears, on 16.8.89 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 
B 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 
C engaged by the appellants herein 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- paite. On 8.2.1992, the 
learned trial court passed an ex- pa1te decree against the appellants. 
The appellants went to enquire about the proceedings in the case 
D from their counsel. Ou 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-palte and the suit had been decreed ex-pa1te on 8.2.1992. The 
appellants then engaged another counsel and on 10.6.1992, filed an applica-
tion under Order 9, Rule 13, C.P.C. for setting aside the order dated 
E 18.11.1991 and the ex-palte judgment and decree dated 8.2.1992. While that 
application was pending adjudication, the appeal filed by the appellants 
against their conviction and sentence was heard by this court. On 7.3.1995, 
the order of conviction and sentence was set aside. 
The trial court dismissed the application filed by the appellants 
F under Order 9, Rule 13, C.P.C. 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 13.12.1996. Hence this 
appeal by special leave. 
We have heard learned counsel for the parties in this appeal and 
G perused the record. 
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 
H appellants, who were admittedly not present on the date when their counsel 
MALKIAT SINGH v. JOG IND ER SINGH 
141 
reported no instructions in the court. It is nobody's case that the counsel A 
informed them after he had reported no instructions to the court. The 
appellants only come to know about the order dated 18.11.1991 and the ex-
. pane 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 O
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