w w w . L a w y e r S e r v i c e s . i n

Nawabzada Mohd. Ishaq Khan V/S The Delhi Iron & Steel Co. Ltd.

    F.A.F.O. No. 293 of 1972

    Decided On, 01 May 1979

    At, High Court of Judicature at Allahabad


    For Petitioner: S.K. Srivastava, S.D. Pandey, Vishnu Sahai and B. Dayal, Advocates And For Respondents: S.C. Agrawal and Sudhir Chandra, Advocates.

Judgment Text

1. This is a plaintiff's appeal arising out of an order dismissing his application under Order 41, Rule 19, Civil P. C. for restoration of the appeal dismissed in default.

2. The judgment under appeal makes amazing reading and the facts of the case are also extraordinary. First Appeal No. 497 of 1957 was initially filed by the appellant in the High Court on 19-12- 1957 against the judgment and decree dated 20-9-1957 of the IInd Additional Civil Judge, Meerut in Original Suit No. 22 of 1953. Later the Appeal was transferred to the Court of the 1st Additional District Judge, Allahabad and was received in that Court on 11-12-1967 and 9-1-1968 was fixed for hearing. The notice of this date was sent to the appellant by registered cover which is alleged to have been received back with an endorsement dated 21-12-1967 of the postman to the effect that the addressee had refused to accept the notice. The appellant was represented in the High Court by two eminent counsel namely, Sarva-sri Kanhaiya Lal Misra and A. P, Pandey, who are no more. It is stated that the notice of the aforesaid date fixed for hearing of the appeal was sent to these counsel as well. The notice with regard to Sri Kanhaiya Lal Misra was received by his clerk Sri Brij Kishore and the notice sent to Sri A. P. Pandey bore an endorsement made by him to the effect that he had no instructions from his client and therefore the appellant should be informed directly by the Court. On 9-1-1968 when the appeal was taken up for hearing the aforesaid notice was taken to be sufficient notice to the appellant of the date of hearing and the appeal was dismissed in default.

3. In these fluctuating vicissitudes it is little wonder that th

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e appellant could not keep pace with the progress of the appeal and remained ignorant of the date fixed for its hearing. It is noteworthy that so long as the appeal remained pending in the High Court the appellant prosecuted the same energetically. He got the records inspected, made an application for translation and printing and deposited the Editor's fee in time and on preparation of the estimate the requisite amount was also remitted by him by telegraphic Money Order and it was thus deposited in time. Thereafter the appellant remained completely ignorant of further proceedings in the appeal and he was throughout under the bona fide impression that it was pending in the High Court and that eventually when it became ripe for hearing he would receive information from his counsel. In the meantime, however, it so transpired that without any information to the appellant and without occasion to cause any misgiving to him in this regard the appeal ceased to be pending in the High Court and was received in the transferee Court. On 6-5-1970 the appellant met his counsel in the High Court and was told by them that according to the new Rules his appeal was likely to be transferred to Meerut, Judicial notice can be taken of this fact that at one stage the appeals of certain valuation were required to be transferred from the High Court to the District Courts and it was seriously believed for some time that probably the appeals would be transferred for hearing to the Courts situate in the respective Districts. Later, however, the hearing of all such appeals was entrusted to an Additional District Judge sitting at Allahabad and in that process the instant appeal was also transferred to the file of the 1st Additional District Judge, Allahabad in whose Court the appeal was dismissed in default.

4. An application supported by an elaborate affidavit was filed by the appellant in May 1970 before the transferee Court along with an application under Section 5, Limitation Act praying for condonation of the delay in presenting the application and for restoring the appeal to its original number and disposing it of on merits. This application was rejected by the IIIrd Additional District Judge and it is this order which has been impugned by the appellant in this appeal.

5. It is remarkable that on 9-1-1968 when the appeal was posted for hearing the defendant himself had applied for adjournment but that application appears to have been consigned to record with the mere order "file" and when the appellant's application for re-admission of the appeal came up for hearing no reference was made to the respondents' application. The manner in which the learned Judge conducted the proceedings and disposed of the restoration application unfortunately betrayed a lack of balance and impartial approach to the matter in controversy, The order eventually passed by him amounted to prejudging the case and showed that it was disposed of with an apparently biased attitude.

6. The learned Judge appears to have been greatly impressed by the report of the postman that the appellant had declined to accept the notice of the appeal. There was, however, nothing to show that the report was in any manner better than the usual such reports as are on deeper analysis often found untrue and on the basis of which the rule of prudence makes the Courts generally reluctant to pass any drastic orders against a party. The appellant in his affidavit filed in support of the restoration application had unequivocally asserted that he had no knowledge of the date fixed for hearing of the appeal and that he did not receive any notice from the transferee Court in regard to the date fixed in the appeal. It was emphatically averred in the aforesaid affidavit that the postal endorsement on the notice sent by registered cover to the appellant was false and fraudulent and he had reason to believe that the endorsement had been procured in order to make out a case of default. The affidavit further added that the deponent had been himself a Railway Magistrate, First Class, Delhi and nothing could have been farther from his intention than to refuse notice of the appeal whose result was of tremendous consequences to himself. It was also stated in the same affidavit that the deponent has been out of station during the last ten or eleven days in Dec. 1957 and no postman with a registered notice ever met him and to say that he refused to accept the notice was wholly untrue, Notwithstanding such categorical averments in the affidavit which were also largely supported by the probabilities of the case, the learned Judge chose to dismiss the restoration application and did so, I am constrained to observe with a profound disregard of the equities and relevant provisions of law. When a report of the nature endorsed by the postman in the instant case was made, it was the duty of the Court when full facts were placed before it with an affidavit by the person adversely affected by the impugned order, to go more deeply into the facts of the case and not to accept implicitly the report of the postman as gospel truth with-out even calling upon the respondent to examine such postman, This salutary principle, born of pragmatic experience, has been approved by the Supreme Court in Puwada Venkateswara Rao v. Chidamana Venkata Ramana In that case the question arose as to whether the notice sent by the respondent could be held not to have been served at all simply because the postman who had made the endorsement had not been produced. The Andhra Pradesh High Court, relying on the case Meghji Kanji Patel v. Kundanmal Chamanlal, held that the notice was not served, There also a writ of summons said to be sent by registered post had been returned with the endorsement "refused", The appellant's presumption had been repelled by the defendant's statement on oath that he had not refused it, as it was never brought to him. In this state of evidence it was held that unless the postman was produced, the statement of the defendant on oath must prevail. The ex parte decree passed on the basis of such alleged service was, therefore, set aside. Their Lordships of the Supreme Court held that on the facts found the view expressed by the High Court was correct, I have already referred in detail to the identical situation which arose in the present case and the learned Judge completely misdirected himself by according without demur the endorsement of the postman which, for aught we know, might have been as the appellant stated, "procured". In the circumstances the order rejecting the application for re-admission of the appeal appears to have been passed in haste and without proper application of mind to the important issues which were at stake,

7. But the most vulnerable part of the judgment in appeal which it is impossible to affirm, is the reflection which the learned Judge chose to make on the two legal luminaries of the High Court Bar. The observations made by him are startling and unbecoming, They need be reproduced 3

"In such circumstances, notice to the said Advocates was sufficient notice to the appellant about the date fixed for disposal of the appeal. If after that service of notice the Advocates concerned failed to discharge their duty of informing their client, it does not only constitute a negligence on their part but it also amounts to treating the Court's notice with contumacy and indifference, I am of the opinion that the counsel concerned were engaged in the appeal for arguing it at a time and place fixed by the Court and their indifference to the notice of the Court informing them about the date fixed for hearing was nothing short of contumacy which can hardly be allowed by any Court". (Emphasis mine).
The learned Judge did not stop at that and he proceeded to observe that the counsel would not have been within their rights even to apply for adjournment once they have accepted the Vakalatnama executed in their favour to argue the appeal. I am unable to reconcile myself to the yardstick which the learned Judge applied for adjudging the conduct of the lawyers. The language used by him equally merits censure. He observed :

"After receipt of precautions for either appearing in that case on the date fixed for its hearing or for informing their client, if for any reason, they were not able to attend in the appeal on that date, The least that was expected from them was to take adjournment in the case, if they had no instructions for arguing the appeal on that particular date, although it did not stand in their mouths to say so, as long as their vakalatnamas which were accepted by them only for arguing the appeal stand." It is inconceivable as to how a counsel by merely accepting the brief precluded himself forever from applying for adjournment of the hearing of the case, howsoever pressing and sufficient the causes impelling the adjournment might have been,
8. The learned Judge appears to have suffered from a complete misapprehension with regard to the duties and obligation of a counsel who accepts the Vakalatnama for the purpose of the arguing an appeal fixed in a Court, It may be true in actual practice that in all circumstances a counsel tries his level best to keep his client apprised of the development in the case and be vigilant lest it might go in default Nevertheless, when it comes to a strict legal determination of the duties of a counsel to his client in regard to a case which has after his engagement been transferred to a different Court, no idealistic standards divorced from actual practice or experience can possibly be adopted or enforced, It is not infrequent that circumstances arise when a counsel loses contact with his client and he finds it well-nigh impossible to communicate with him, The difficulty is aggravated when the case is transferred to another Court. The clear endorsement made by Shri A. P. Pandey that he had no instructions from his client and notice be directly sent to the appellant should have been accepted on its face value. It denoted the real handicap and the practical difficulty which the learned counsel was experiencing and there was no reason to treat such endorsement with scepticism.

9. I am also unable to endorse the extreme opinion expressed by the learned Judge that a counsel once engaged to argue an appeal pending in any Court is caught in such an encircling web that he cannot extricate himself from the same in any circumstances. No irrevocable legal duty is cast upon a counsel once engaged in a different Court to pursue the case in the entire hierarchy of Courts and be answerable to his client throughout the whole gamut of litigation which takes in its stride such differently constituted Courts as the High Court and the District Court and kaleidoscopic transitions from one Court to another. It appears that the learned Judge lost sight of the provisions of Order 3, Rule 4, C. P. C. which is so far as is relevant for the purposes of this case reads.

"Appointment of Pleader :

(1) No Pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorised by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be filed in Court and shall, for the purpose of Sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the Pleader, as the case may be, and filed in Court, or until the client or the Pleader dies, or until all proceedings in the suit are ended so far as regards the client.

Explanation. -- For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit;

(a) an application for the review of decree or order in the suit,

(b) an application under Section 144 or under Section 152 of this Code, in relation to any decree or order made in the suit,

(c) an appeal from any decree or order in the suit, and

(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.

(3) Nothing in Sub-rule (2) shall be construed -

(a) as extending, as between the Pleader and his client, the duration for which the Pleader is engaged, or

(b) as authorising service on the Pleader of any notice or document issued by any Court other than the Court for which the Pleader was engaged, except where such service was expressly agreed to by the client in the document referred to in Sub-rule (1).

It will be noticed that Sub-rule (3) of Rule 4 does not provide for service on the Pleader of any notice etc. issued by the Court other than the Court for which the Pleader was engaged. Admittedly the two counsel in the present case were engaged for the purpose of arguing the appeal which was pending before the High Court and not before any other Court. I have carefully looked into the terms incorporated in the Vakalatnama on record which was executed by the appellant. It does not cast any obligation on the counsel concerned to accept any notice in the case issued to them by transferee Court.

10. The learned Additional District Judge acted very arbitrarily in penalising the appellant for the assumed sins of his counsel. Not only he failed to apply the correct provisions of law to the facts of the case but also made observations in his judgment which cannot be approved of. The judgments delivered by Courts must be characterised by restraint of language, sobriety of expression and a diction which does not smack of being undignified. I have no hesitation in saying that the judgment under appeal in the instant case is not only erroneous but also clothed in a language so inordinately severe and intemperate as to suggest that it was tendered more in indignation than in a calm judicial spirit. Surely it does not behave the Courts of law while handing down their verdicts to indulge in disparaging observations about the stalwarts of the Bar. To make such derogatory remarks in respect of such an illustrations leader of the Bar as the late Sri A. P. Pandey and that doyen of the Bar, the late Sri Kanhaiya Lal Misra is to exceed all the bounds of judicial propriety and restraint. I have no doubt that if the learned Judge had properly applied his mind to the averments made in the appellant's restoration application, he would have arrived at the irresistible conclusion that sufficient cause had been made out in the extraordinary circumstances of this case for setting aside the order of default and disposing of the appeal on merits.

11. In the circumstances I allow this appeal, set aside the order of the Court below and send the case back to the Court of the District Judge, Meerut with a direction that the appeal be readmitted to its original number and disposed of expeditiously on merits. I make no order as to costs, Sri B. Dayal, counsel for the appellant and Sri V. K. Goel holding the brief of Sri Sudhir Chandra, counsel for the respondent, undertake to inform their clients to appear before the District Judge, Meerut on 16th July, 1979 in connection with the hearing of this appeal. Registrar should ensure that the record of the case is sent down immediately to the Court of the District Judge, Meerut

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