LexSALIL DUTTA versus T.M. AND M.C. PRIVATE LTD.
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A B SALILDUTIA v. T.M. AND M.C. PRIVATE LTD. FEBRUARY 5, 1993 (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 B limited company, managed by persons who were not only well-educated 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 c not be proper to set aside lhei~ order under Article 136 of the Cooslitu· 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 E negligence and/or misdemeaoour or the advocate where ii finds that the -~ 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 G managed by educated businessmen who know where their interest lies. It 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 c
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