Ramlall Kanhaiyalall Vs The Mysore Sagar Com. Ltd.

Amitava Lala, J.@mdashThis is an application for recalling and/or setting aside a decree passed by this Court on April 30, 1998.

2. It appears from the application that the suit was instituted on July 15, 1977 by the Plaintiff. The Defendant/Petitioner filed written statement on April 4, 1980. In the month of March, 1986, the Plaintiff''s witness was examined in chief but no cross examination was held.

3. It also appears from the application that the Advocate-on-record of the Plaintiff expired at a point of time but no such date is given therein.

4. On March 18, 1998, the suit appeared in the peremptory list of this Court under the heading "to be mentioned". Since none was present on behalf of the Petitioner/Defendant on that date and when came to know from the Plaintiff''s Advocate about the death of Defendant''s Advocate, this Court was pleased to direct the Plaintiff to inform the court on an adjourned date i.e. March 27, 1998 as to the subsequent steps taken by the Petitioner/Defendant after the death of Petitioner''s previous Advocate with a further direction that if on that date, the Petitioner/Defendant fail to inform the Court about the subsequent steps, the above suit would be listed under the heading ''unDefendant suit'' on 3rd April, 1998 in the supplementary list.

5. According to the Petitioner, on March 30, 1998 the above suit was listed under the heading ''to be mentioned'' but since nobody appeared on behalf of the Petitioner, the suit was directed to place under the heading ''undefended suit'' pursuant to the earlier direction on April 13, 1998 and would be taken up at the first call. It was further stated by the Petitioner that the Plaintiff was directed to inform the Petitioner Defendant about the date of hearing of the suit and to file affidavit-of-service.

6. According to the Petitioner, on March 30, 1998 itself at about 3.45 p.m., the Petitioner/Defendant sent a telegram to his present advocate on record, Mr. Tarun Kanti Ghosh and on the same day at about 8.30 p.m., said Tarun Kanti Ghosh, Advocate received the telegram at his residence in Calcutta.

7. From the aforesaid statements in the petition itself, it is prima facie clear that the Petitioner/Defendant was aware of the proceedings in the Suit Court even before service of further notice but did not choose to appear through an Advocate.

8. The Petitioner further stated that his present Advocate received vakalatnama a few days after receiving the telegraphic massage which was not properly executed in accordance with the rules and was not accompanied by an affidavit of competency. Therefore the learned Advocate-on-record appeared with such defective materials and prayed for an adjournment to get necessary papers to represent the suit. The court was also pleased to direct the Plaintiff to serve all the necessary papers and documents relating to this suit to the incoming Advocate upon payment of costs, charges and expenses. Ultimately, the suit was directed to be heard as ''specially fixed matter'' on April 27, 1998, at the top of the list and the Petitioner was directed to file the correct vakalatnama and affidavit of competency and further directed that failing which exemplary costs will be imposed upon him.

9. On April 23, 1998, the Petitioner''s Advocate duly filed proper vakalatnama and affidavit of competency in the department in compliance of the order of the court dated April 13, 1998 and put the cost to the Plaintiff''s Advocate for supply of necessary papers relating to the suit.

10. The Petitioner contended that on April 24, 1998, the Petitioner''s Advocate fell ill and admitted to Nursing Home on April 25, 1998 and ultimately released on May 3, 1998 and attended the court for the first time on May 15, 1998 and thereafter came to know that the suit was decreed ex parte on April 30, 1998.

11. In support of the contention of the lawyer''s illness, Mr. Santanu Mukherjee, Learned Counsel appearing for them cited a judgment Dabendra Nath Bhattacharya Vs. Amalendu Bhattacharjee,

12. The Respondent/Plaintiff contested the application seriously by filling the affidavit and by making various submissions. According to Mr. Joy Saha, learned Advocate appearing for the Respondent/Plaintiff that in normal circumstances, an Advocate''s ground of illness may not be opposed by an Advocate but this is not such a case where laches of an Petitioner and/or it''s Advocate-on-record should be taken up so lightly.

13. He stated that the suit was instituted in 1977, i.e. about 22 years before passing of this decree. Such suit was not only contested by the Defendant by filing written statement but even witness was examined on behalf of the Plaintiff. The Petitioner/Defendant even being a company did not take any effective steps to enquire about the death of the erstwhile Advocate.

14. This suit was appearing in the list after due compliance of all formalities and it is the duty of the Defendant company as to whether it has been properly represented or not. this Court, to accommodate the Petitioner/Defendant has gone but of the way and directed the Respondent/Plaintiff to serve notice directly to the Petitioner/Defendant so that they should not be unheard.

15. There is no explanation what effective step was taken by the Petitioner/Defendant for the purpose of hearing the suit inspite of the direction of the court, fixing the suit as "specially fixed matter" on March 27, 1998 in presence of their incoming Advocate, Mr. Tarun Kanti Ghosh. The Petitioner/Defendant has got enough time to engage a Counsel to require the Defendant''s presence before the court on the date, when the suit was specially fixed fro hearing. There is no explanation as to the presence of the litigant in the court, which is prime consideration for the suit court and also nonappearance of the counsel. There is no whisper as to why nobody intimated the court as and when the suit was heard out to obtain an adjournment. It is also the ethical practice of the court that as and when any member of the Bar is not present and a litigant or a clerk to an Advocate approach any other Advocate not in the matter, for mentioning on behalf of such learned Advocate to obtain an adjournment, when he does so but no such incident took place herein. The Respondent/Plaintiff with his riped old age waited in the court room regularly for having disposal of the suit and it is extremely surprising that the suit is for money decree for about a sum of Rs. 1,86,000.00, which was pending for so many years without any cogent defence. Moreover, the suit was decreed not only on default but also on merit as available from the decree dated April 30, 1998. Therefore, the decree should not be recalled.

16. No doubt there is a valid defence of the Respondent/Plaintiff.

17. Initially, after hearing both the parties this Court was pleased to enquire from Mr. Mukherjee, Learned Counsel appearing for the Petitioner/Defendant that what is the necessity of fighting out the claim of the Respondent/Plaintiff only for about a sum of Rs. 1,86,000.00 after 22 years, when there is no cogent defence. The answer was given by Mr. Mukherjee that although the same was initially at about Rs. 1,86,000.00 but by adding interest, now the same has become about Rs. 10 lakhs.

18. Therefore it is also apparent that cause of making this application is not only advocate''s ground of illness alone.

19. Under these circumstances, the balance of convenience speaks that there should be a test of bona fide to justify the prayer. Accordingly, this Court was pleased to grant adjournment directing the Petitioner/Defendant''s Advocate to take an instruction from his client as to whether his client is ready and willing to furnish security of at least 50% of the decretal sum in the court or not. Thereafter, the application appeared before the court when the Plaintiff''s said advocate-on-record, Mr. Tarun Kanti Ghosh obtained an adjournment on the ground of Mr. Mukherjee but on enquire as to the instruction, he only conveyed that he has no instruction till such date.

20. On July 24, 1998, when the matter was called on, this Court firstly enquired from Mr. Mukherjee as to the instruction of his client to satisfy the test of bona fide but even then, Mr. Mukherjee not only by-passed the test of bona fide as required by the court but also, in reply cited about four judgments being Life Insurance Corporation of India Vs. Anjan Kumar Arora and Others, ; Kumud Lata Das v. Indu Prasad (1996) II S.C.C. 195 , B. Madan Mohan Vs. B. Kanhaiya Lal and Chhagan Raj and Others Vs. Sugan Mal and Another, to establish before the court that no condition can be imposed in case of restoration.

21. I am really surprised with the conduct or the Petitioner/Defendant. Deposit or no deposit comes at a later stage but before that the court has every right to enquire about the diligence of a party seeking discretion from the court. This was conscience of an individual court which was not fulfilled.

22. Since, I have allowed Mr. Mukherjee, in reply, to make further new submissions by citing the aforesaid judgments, I have allowed Mr. Saha similarly.

23. Mr. Saha contended, by citing a judgment Salil Dutta Vs. T.M. and M.C. Private Ltd., that save and except Kumud Lata Das v. Indu Prasad Supra, all other judgments are older than the above and above judgment too factually distinguishable from the present case. The judgment, as cited by him, made havoc chage in the field of recalling and/or setting aside of an order or decree. Previous concept of Rafique''s case that a lay client should not be made to suffer on the ground of laches, negligence and/or inaction on the part of an Advocate, is not an absolute proposition now. Rustic innocent villagers cannot be equated with a company.

24. According to me, there is one snag in showing the factual aspect of the reported judgment Salil Dutta Vs. T.M. and M.C. Private Ltd., that is the company having its office in the city means Calcutta but in the present case, the company has its office in the city of Bangalore. But then principally this case is not only applicable herein, also when the company is run by the educated persons who are aware of the court proceedings cannot be allowed to advantage of laches, inaction or negligence on the part of an Advocate. Moreover one admitted position is that on March 30, 1998 at about 3.45 p.m., the Petitioner company sent a telegram and on the very day at about 8.30 p.m. such advocate received instruction from the company in Calcutta even before receipt of notice for which a direction was given on that very day to the Respondent/Plaintiff and file affidavit-of-service. Therefore, it is apparent the company was diligent for some other purpose but not for the hearing of the suit and for this act alone it cannot be said that the conduct of the Petitioner/Defendant company is free from suspicion to get a descretionary order.

25. One other aspect was pointed out by Mr. Saha by citing a judgment Mahabir Chandra Gelada Vs. Sohanlal Boid, and by relying upon head note ''a'' therein that in normal practice in the Original Side, a Solicitors and/or Advocates are engaging at least one Counsel to appear and address before the court specially in a suit where several technicalities are involved. this Court observed that the present advocate-on-record is not personally conversant in acting as an Advocate-on-record in conducting a suit in the original side of this Court and made several technical mistakes which were cured by this Hon''ble Court as available from the records. Although the same are, technicalities but the court can weigh the genuinity of his grievance. Here it can be presumed that either the Advocate-on-recored did not engage any Counsel knowingfully well that the suit was fixed under the heading "specially fixed matter" in his presence or having engaged did not disclose the same to get a relief for recalling and/or setting aside the decree on his personal ground in the way of earning sympathy from the court.

26. Although Mr. Mukherjee meeted that this is a question of illness of an Advocate and he is asking for equitable relief but I agree with Mr. Saha in drawing inference because it Js a matter of conscierce of the court and my conscience is not permitting me to recall and/or set aside the decree dated April 30, 1998 upon observing all the above aspects one after another. Balance of convenience does not permit me to give relief to the Petitioner.

27. Therefore, the application in dismissed. No order is passed as to costs. Interim orders passed, if any, are vacated.

28. Department and all parties are to act or a signed copy minute of the operative part of the order.