C.Y. Somayajulu, J.@mdashRespondent filed OS No. 87 of 1990 against the appellant as 4th defendant and three others including the State of Andhra Pradesh as defendants 1 to 3, for recovery of Rs. 1,98,774/-. Appellant put in appearance through one Mr. D. Jayaprada Rao, advocate in the said suit. Since he did not file his written statement for number of adjournments, he (appellant) was set ex parte on 3-12-1990. He filed IA No. 59 of 1991 under Rule 7 of Order IX CPC to set aside the ex parte order against him. Though the said petition was allowed, and the order setting him ex parte was set aside and several adjournments were granted to file his written statement, since he did not choose to file his written statement till 13-12-1991 and did not even pay the costs imposed against him, and since he was also not present and since the other defendants in the suit had filed their written statements, the Court below posted the suit to 16-12-1991 from 13-12-1991 for framing of issues without formally passing an order setting the appellant ex parte. After framing issues, trial of the suit was taken up. By the judgment dated 27-11-1996 the trial Court while dismissing the suit against defendants 1 to 3, decreed the suit against the appellant for the amount claimed in the suit.
2. Alleging that only because his Advocate Mr. Jayaprada Rao informed him that he need not attend Court and that whenever his presence is required he would post a letter, and till he receives a letter from him (the advocate), he (appellant) need not even attend the Court, and since he did not receive any letter from Mr. Jayaprada Rao, he did not attend the hearings of the case and was away in Karnataka State executing contracts and that only after coming to know that Court officials caused a tom-tom in the village regarding attachment of his properties only did he go Court to make enquiries and came to know that Mr. Jayaprada Rao, advocate had passed away, and that the suit was decreed ex parte against him, appellant filed IA No. 374 of 1997 to set aside the ex parte decree passed against him.
3. Contending that the decree passed against the appellant is not an ex parte decree, and that petition to set aside ex parte decree is hopelessly barred by time and negligence and laches on his part cannot be made grounds to set aside the decree, respondent opposed the said application.
4. In support of his case, appellant examined himself as PW1. In support of his case, the respondent examined himself as RW1. No documentary evidence was adduced by the parties. The Court below by its order under appeal, dismissed IA No. 374 of 1997 holding that the decree passed the appellant is not an ex parte decree and the petition is also barred by time. Hence this appeal by the 4th defendant in the suit.
5. The main contention of the learned Counsel for the appellant is in view of
6. The contention of the learned Counsel for the respondent is that since the decree was passed on 27-11-1996, and since limitation for filing a petition to set aside ex parte decree is 30 days from the date of decree as per Article 123 of Limitation Act, this petition filed on 27-10-1997 is hopelessly barred by time, and since no petition u/s 5 of the Limitation Act is filed to condone the delay of about 10 months, the trial Court rightly held that the petition is not maintainable and contended that since the appellant is not a rustic but is an educated person having knowledge of Court proceedings and admittedly is guilty of laches and negligence, Rafiq case (supra) relied on by the learned Counsel for the appellant has no application and that ratio in Salil Dutta v. T.M. & M.C. Private Limited JT (1993) 4 SC 522, applies to the facts of this case and so there are no grounds to interfere with the order under appeal.
7. As rightly observed by the Court below since the appellant was duly served with summons, limitation for filing the application under Rule 13 of Order IX CPC, starts from the date of decree but not from the date of his knowledge. Since the decree was passed on 27-11-1996, and since this petition to set aside the decree was filed on 27-10-1997, there is a delay of 10 months in filing the petition. In A. Govindaiah case (supra), relied on by the learned Counsel for the appellant, the learned Judge, by following the ratio in the decision of a Division Bench of this Court in Ramachandra Rao v. Seshiah 1957(2) An.WR 106 and
8. In Rafiq (supra) case which arose out of an appeal against an order of the High Court refusing to set aside the order dismissing an appeal for default, it is held-
"After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings and rest assured that he has neither to go to the High Court to enquire 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 has no part of his job". (underlining mine)
It is well known that in an appeal presence of a party at the time of hearing is not required and his advocate only has to argue the appeal. In a original suit before a trial Court party has to instruct the advocate for drafting written statement and has to furnish the names of witnesses, give instructions for cross-examination of the opposite party and his witnesses, and has also to give evidence. Without the presence of the party, his advocate cannot effectively prosecute or defend the suit. No ordinary prudent advocate appearing for a defendant in a trial Court would ask, or direct, his client not to come to Court or his office till he receives a letter from him, especially before filing of the written statement. In fact it is the duty of the client to find out the stage of litigation from his advocate. If his advocate fails to write letters, the party defendant is expected to contact his advocate, because, it is he, but not his advocate that would be put to jeopardy, if he fails to appear, or fails to file his written statement.
9. In Salil Dutta case (supra), relied on by the learned Counsel for the respondent, while referring to Rafiq case (supra) it was observed;
"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 several years after the institution of the suit. The defendant is a private limited company having its registered office at Calcutta itself. The persons in charge of the defendant-company are not rustic villagers nor they are innocent illiterates unaware of Court procedures". (underlining mine)
Both the above decisions of the Supreme Court were referred to by the learned single Judge in Govindaiah case (supra).
10. The suit in this case was filed in 1990. Appellant put in appearance through Mr. Jayaprada Rao, advocate was set ex parte on 3-12-1990, because he did not file his written statement or pay costs ordered to the other side. On his filing IA No. 59 of 1991 to set aside the said ex parte order, the order setting him ex parte was set aside on 12-8-1991. Even then he did not file his written statement till 13-12-1991. Would not the appellant, who is a contractor and against whom a claim for nearly two lakhs is made, know that he has to file his written statement contesting the suit, if really he has good defence in the suit? It is difficult to believe that appellant, who has been looking after his other affairs effectively became a Rip Van Winkle only in respect of the suit filed against him in 1990 for recovery of two lakh rupees. Appellant, when he filed IA No. 59 of 1991 to set aside the ex pane order against him, like an ordinary prudent litigant should have enquired from Mr. Jayaprada Rao, who allegedly instructed him not to bother till he receives a letter from him, as to why he did not write to him to come to give instructions for drafting written statement and allowed an ex parte order being passed against him? Obviously to meet such a plea the appellant alleged in his affidavit that Mr. Jayaprada Rao obtained his "signature" on a blank paper. Since written statement requires two signatures and since affidavit filed in support of IA No. 59 of 1991 must have been attested, which could be done only in the presence of the party by the attesting officer, and since it is not even the case of the appellant that the affidavit filed in support of IA No. 59 of 1991 was got attested in his absence, the blank white paper, on which appellant allegedly affixed his signature must not have been used by Jayaprada Rao. After IA No. 59 of 1991 was allowed, and the ex parte order against him was set aside, appellant should have been more careful as the adage is ''once bitter twice shy'' and should not have continued to place implicit reliance on the assurance allegedly given by Jayaprada Rao,
11. In Govindaiah case (supra) the defendant who filed the petition was an illiterate villager and he filed the petition alleging that he went to his advocate to find out the fate of his case when he did not receive communication for three years. In this case appellant, who is a contractor, can be imputed with knowledge of Court proceedings. It is his case that he engaged Mr. Jayaprada Rao as per the advice of Mr. Rammohana Reddy, brother of the then MLA, but he failed to disclose as to why he did not take steps for drafting written statement for about six years, after he gave the Vakalat. No ordinary prudent literate would do so? Significantly the appellant did not even choose to mention the date of death of Jayaprada Rao, and did not take steps to summon the accounts of Jayaprada Rao, which would reveal whether letters to the appellant were posted or not. It is well known that whenever an advocate writes a letter to his client, the cost of the letter would be debited to the account of the client. Therefore without the appellant taking steps to secure production of accounts books of Jayaprada Rao, his ipsi dixit that he did not receive any communication from Jayaprada Rao cannot be believed or accepted. Therefore, the finding of the Court below that appellant, probably taking advantage of the death of Jayaprada Rao alleged that Jayaprada Rao asked him not to come till he receives a letter, appears to be correct.
12. In
13. The suit in this case is for recovery of money. This petition, obviously, is filed with a view to delay the execution of the decree and to drag on the proceedings for a long time as possible. Keeping in view the ratio in M.K. Prasad case (supra) and Ramesh case (supra), the delay can be condoned and ex parte decree can be set aside by imposing heavy terms so that respondent''s interest also can be protected. Therefore I set aside the ex parte decree by directing the appellant to deposit 75% of the decretal amount i.e., 75% of the principal and interest accrued thereon as per the decree upto date of deposit and entire costs awarded in the decree and in addition thereto Rs. 10,000/- as costs to the respondent for condoning the inordinate delay in filing the petition under Rule 13 of Order IX CPC. It is made clear that appellant is not entitled to put the clock back by seeking permission to file his written statement, since he did not even think it fit to file his written statement with this IA. He can only cross-examine PWs, and adduce his evidence. It is made clear that both parties are at liberty to adduce such evidence as they wish to.
14. In the result, the appeal would stand allowed and delay in filing the petition would stand condoned and the ex parte decree dated 27-11-1996 in OS No. 87 of 1990 on the file of the Court of the Senior Civil Judge, Nellore, would stand set aside on condition of the appellant-4th defendant depositing Rs. 10,000/- (Rupees ten thousand only) besides 75% of the decretal amount (i.e., principal and interest thereon as per the decree up to date of deposit and entire costs awarded in the decree) within four (4) weeks from today. In default of making such deposit, the appeal stands dismissed with costs. In the event of the appellant making the deposit as ordered above, respondent is entitled to withdraw Rs. 10,000/- (Rupees ten thousand only) unconditionally irrespective of the result of the suit. He is entitled to withdraw half of the remaining amount deposited into Court without furnishing security, and the remaining half of the amount by furnishing security to the satisfaction of the trial Court. Such withdrawals would be subject to the result of the suit. In the event of the ex parte decree being set aside, the trial Court shall dispose of the suit within three (3) months from that date, as per the directions given in para 13 above. The appeal is ordered accordingly. Advocate fees is fixed at Rs. 1,000/-.
