What is distinction between physical presence and effective presence of Advocate?


Notice of Motion No. 4424 of 2007

Decided On: 25.02.2009

Devidayal Sales Pvt. Ltd.
The State Trading Corporation of India and Ors.

Hon’ble Judges/Coram:A.A. Sayed, J.

Citation:2009(4) MHLJ 298

1. This motion has been filed on behalf of the plaintiffs for restoration of the suit, which was dismissed by this Court on 22nd October, 2007 for non-prosecution. An affidavit in support of the motion has been filed by an Assistant Advocate working with M/s. Gordhandas & Fozdar, Advocates for the plaintiffs. The suit was instituted in September 1977 and it was numbered sometime in 1979. The suit is filed for damages in a sum of Rs. 3,62,920/- together interest @ 15% per annum from the date of the suit till payment, in respect of non-delivery of goods to the plaintiffs by the defendant’s The evidence was recorded before the Commissioner appointed in the matter. The suit was then kept for arguments before the Court. The arguments on behalf of the defendants by their Counsel were advanced and completed and the arguments on behalf of the plaintiffs, were partly heard. Thereafter because of the change of the assignment, the matter was notified before another Judge.

2. On 22nd October, 2007, when the matter was called out, the deponent who has affirmed the affidavit in support of the motion and who is a junior lady Advocate, working with Gordhandas & Fozdar, Advocates for the plaintiffs, appeared and sought an adjournment on the ground that the plaintiffs” Counsel was hospitalised on 7th October, 2007 and he was discharged after a week and was advised bed rest for 10 more days and, therefore, the Counsel could not remain present on that day. It is stated in the affidavit that the advocate on record who is the Senior of the deponent was out of station on 22.10.2007 for his personal work and no arrangement could be made for appointing another Counsel for arguing the matter. It is further averred by the deponent that she, being a new entrant in the profession, had no instructions and was not able to argue the matter. However, as the Court was not inclined to adjourn the matter, the matter was initially kept back and was ultimately dismissed for non-prosecution in the afternoon session.

3. The learned Counsel for the plaintiffs at the outset asserted that it was not open for the Court to dismiss the suit for non-prosecution. According to the learned counsel, the learned Single Judge ought to have either granted the adjournment or proceeded with the case and passed appropriate judgment in the suit on merits as the evidence was over in the matter and was on record. The learned Counsel contended that sufficient grounds were made out for the Counsel to have not remained present before the Court on that day and that the advocate on record was also out of station for his personal work. It is submitted that the junior Advocate was not having any instructions in the matter and being a new entrant, she could not have argued the matter. It is therefore urged that the suit be restored to file and be heard on merits.

4. The learned Counsel for the defendants, on the other hand, pointed out that the suit was instituted sometime in 1977. He submitted that neither the Counsel, nor the advocate on record was present and the junior Advocate was not in a position to argue the matter. The Ld. Counsel contended that in these circumstances it was open for the Court to have dismissed the suit on account of non-prosecution. He drew my attention to the observations made in para 2 of the impugned order, wherein the learned Single Judge has observed thus – “It was made clear that if the Counsel appearing for the plaintiffs failed to appear, in that case, the advocate on record should take responsibility of pursuing the matter”. He submitted that no sufficient cause is made out for restoration of the suit and urged that the Notice of Motion be dismissed.

5. I have heard the learned Counsel for the parties and perused the material on record.

6. Order 17 Rule 2 of the Civil Procedure Code, 1908, provides the course for the Court to adopt in such a situation viz. where the parties fail to appear on a day when the case is fixed for hearing. Order 17 Rule 2 reads thus:-

“Order 17, Rule 2 – Procedure if parties fail to appear on day fixed – Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order 9 or make such other order as it thinks fit.

Explanation – Where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may, in its discretion proceed with the case as if such party were present.

7. A bare reading of the above Rule 2 reveals that where a party fails to appear, the Court, if it is not inclined to grant an adjournment, has the option to dispose of the suit by proceeding in the mode provided under Order 9 (which deals with appearance of parties and consequence of non-appearance at the time of hearing) or to “make such order as it thinks fit”. The Explanation clarifies that in cases where the evidence in the suit has already been recorded (as is in the present case) or substantial portion of the evidence is recorded, then the Court has the “discretion” to proceed with the case by assuming that the other party is present – in other words proceed to pass.

8. In the case in hand, the Court has refused to grant an adjournment and has exercised it”s discretion to proceed to dispose of the suit by dismissing the same, apparently under Order 9 Rule 8, which speaks of the procedure where the defendant only appears and the plaintiff does not appear. The Court has chosen not to proceed to decide the matter by passing This course adopted by the Court was, in my view, well within the four corners of Order 17 Rule 2, which is applicable to the facts of the present case. To say that if the Court was not in favour of granting an adjournment, it was incumbent upon it to decide the case on merits, would to my mind, be reading something more in the Rule, than what is contemplated. In my opinion, no such duty is cast upon the Court as is suggested by the learned Counsel for the plaintiffs.

9. Though the case squarely falls in Order 17 Rule 2, useful reference may also be made to the provisions of Order 17 Rule 3. Order 17 Rule 3 reads thus-

“Order 17 Rule 3” – Court may proceed notwithstanding either party fails to produce evidence, etc. – Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witness, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may notwithstanding such default,-

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is absent, proceed under Rule 2.

10. The rule thus provides that if the parties are present, then Rule 3 would be applicable, and in the event the parties are absent then one needs to revert to Rule 2. Since in the present case, the plaintiffs were not present, Rule 2 would apply. It is ofcourse now a settled law that the appearance of the counsel is treated as appearance of the party, who he is representing.

11. This brings us to the question whether in the instant case, when the junior Counsel is present and appears before the Court without instructions and merely for the purpose of taking an adjournment, can it be treated as non appearance within the meaning of Order 17 Rule 2. This Court had the occasion to deal with a similar issue in the case of Prashant Vagaskar v. MCGM reported in AIR 2002 Bombay 120. In that case the Learned Single Judge of this Court (Daga J.) observed in para 21 of his Judgment as under:

“21…. In other words, appearance/presence should be for the purpose of taking part in the proceeding and that it includes preparedness to cite evidence and/or to produce documents or to take any other step for disposal of the suit/case as may be considered necessary. Therefore, if a party to a suit for some reason or other is precluded from being ready to take part in the prosecution of the suit but somehow manages to come with a view that the case should be got adjourned for some other day, his appearance in such a circumstances will not amount to an appearance as contemplated under Order 17, Rule 2 of Civil Procedure Code. In this view of the matter, the appearance of the plaintiff on 30-8-2001 was no appearance for the purpose of the suit.”

12. The Learned Single Judge has in the above judgment relied upon the full bench decision of the Calcutta High Court in the case of Satish Chandra Mukerjee v. Ahara Prasad Mukerejee, (1907) ILR 34 Calcutta 403, wherein it was unanimously held by the 5-Judge bench as under:

“The term “appearance” is nowhere defined in the Code and as pointed out by Benson, J. in Seeley v. Evans, (1838-19 Wendell 459) has several significations the word must always be understood in reference to the particular subject matter to which it relates and the purpose or end to be answered by the appearance has an important bearing in determining what is sufficient to constitute appearance in a particular case. It seems to me that having regard to the scope of Section 556 of the Civil Procedure Code and the object to be gained by the attendance or appearance of the counsel to make ail (sic an) application for adjournment ought not to be treated as appearance so as to oust the jurisdiction under Section 558 of the Civil Procedure Code, if proper cause is shown. Upon refusal of the application for adjournment, if counsel declines to go on with the case, there is at that time no appearance on behalf of the party. I do not feel much pressed by the reference made to the case in which evidence may have been taken and which has been partially argued.”

13. It is noteworthy that the High Court Amendment of Andhra Pradesh adds an Explanation to Order 17 Rule 2 of the Code, to the effect that the mere presence in Court of a party or his counsel not duly instructed shall not be considered to be an appearance of the party within the meaning of this rule.

14. Thus, the presence of a Counsel has to be an effective presence, not mere physical presence. The Counsel should be ready with the matter and be able to assist the Court. The appearance of a Counsel who has instructions only to apply for an adjournment or to have the matter kept back cannot be considered as an appearance at all in the context of Order 17 Rule 2 or Order 9 Rule 8 of Civil Procedure Code. If one peruses the Vakalatnama, it ordinarily mentions the words “act appear and plead” for and on behalf of the party. The appearance of a Counsel who is not able to or unwilling to plead the cause of his client can hardly be termed as an appearance. It may be mentioned that it has become a matter of routine and everyday practice in this Court to let juniors appear and seek adjournments or have the matter kept back and many a times they are not even aware about the subject matter. Their presence cannot be termed as their “appearance” for the purposes of Order 17, Rule 2.

15. For a judge to feel compelled to write a judgment without hearing the case of the plaintiff, would in my view, be undesirable in cases involving complicated questions of law and facts and the judgment would be more vulnerable to attack if it is challenged in Appeal, with a fair chance of the matter, in appropriate cases, having being remanded to the trial court to grant an opportunity to the plaintiffs to be heard. It is to be borne in mind that even the evidence which is recorded in the present matter is not by the same judge, but before a Commission (as is now routine in this Court after the amendment of 2002). It should be best left for the Judge to judge having regard to the evidence on record, whether he wants to write a judgment on merits or dismiss the suit or “make such order as he thinks fit”, in the event he is not inclined to grant an adjournment simplicitor. The term “make such order as he thinks fit” used in Rule 2 would be an alternative to the mode provided under Order 9 and would include giving directions to the office to issue notice to any party if the counsel pleads “no instruction” or to pass a conditional order or the like. The words “make such order as he thinks fit” itself suggest that there are other options available to the court than to write a judgment on merit. It may be stated that even Rule 17 Order 41 provides for dismissal of Appeal for non prosecution notwithstanding the fact that the entire material, including the evidence is before the Court.

16. Even otherwise, for the sake of illustration, let us take an instance where in a case the evidence is already recorded or substantially recorded and the parties clandestinely settle the matter amongst themselves, without informing their Counsel so as to avoid paying their fees, and the Counsel for the parties appear before the Court without instructions and/or are reluctant to go on with the matter in absence of the parties and they have appeared only as a matter of bounden duty and courtesy to the Court. Would the Court then be obliged to pass a judgment on merits in absence of any assistance by Counsel of the plaintiffs in the matter ? What if the matter was voluminous and involving complex questions of facts and law ? That said, I do have my reservation anyways, whether a defaulting plaintiff can be heard to dictate to the Court that the suit should have been adjourned, else the Court should have decided the suit on merits. In today”s scenario, considering the volume of business of the Courts, to expect the Courts to decide suits finally after going through the pleadings and evidence and other material on record, without any assistance from the plaintiffs, would in very many cases mean unnecessary waste of precious time of the Court, when other deserving cases could have been heard and I see no reason why the Court should be compelled to write judgments of defaulting plaintiffs. Ofcourse in a given case, after considering the facts and circumstances, the court may on being satisfied, use its judicial discretion and proceed to decide the case on merits, particularly when the evidence or substantial portion of the evidence has been recorded.

17. In view of the foregoing discussion, I am unable to accept the proposition put forth by the Learned Counsel for the plaintiffs that in the present case that if the Court was not inclined to grant an adjournment, it was incumbent upon it to have decided the suit and passed a judgment on merit.

18. Coming to the factual aspect of the matter, it is to be noted that the suit is of the year 1979 and was instituted in 1977. The evidence in the matter was already recorded by the Commissioner who was appointed for the purpose and the matter was posted for arguments. It is also clear from paragraph 2 of the impugned order that the learned Single Judge had made it clear (in his earlier order) that if the counsel for the plaintiffs fails to appear, the advocate on record should take responsibility of pursuing the matter. However, no satisfactory explanation is given as to why the advocate on record left Bombay when he knew that the matter was likely come up on Board on 22.10.2007 for arguments. As stated by the learned single judge, no leave note was filed. It is merely stated in the Affidavit in support of the motion that the Advocate on record had gone out of station for his personal work. It is not stated as to which place he was required to visit or what was the cause or urgency for leaving Bombay without having made proper arrangements. While no fault can be attributed to the absence of the learned Counsel, the conduct of the Advocate on record seemed rather casual, particularly when it was cautioned that the Advocates on record should take responsibility in pursuing the matter in absence of the counsel. Considering the provisions of Order 17 Rule 1 of Civil Procedure Code and the facts and circumstances of the case, the Advocate on record ought to have remained present or made alternative arrangement, as is recorded by the learned Single Judge in his order.

19. In the instant case the affidavit in support of the motion is filed by an Assistant Advocate of M/s. Gordhandas & Fozdar, the Advocates for the plaintiffs. There is no affidavit by the plaintiffs. The affidavit of the Assistant Advocate, if any, ought to have preferably come in as and by way of supporting affidavit to the plaintiffs” case in their affidavit. It is desirable that the affidavit in support of the Notice of Motion should be that of the plaintiffs so that the plaintiffs are aware as to the happenings in their suit, as it is possible that in a given case, if the suit is dismissed on account of default on the part of the Counsel, the plaintiffs are not even aware of the dismissal of their suit and the matter is sought to be restored by filing affidavits by the advocates. In the peculiar facts of the present case, I will assume that the plaintiffs are made aware of the status of their matter.

20. Though the explanation given by the plaintiffs is not entirely satisfactory, taking an overall view of the matter, in the interest of justice, I am inclined to allow the motion, subject however, to costs. Higher costs, in my view, are warranted looking to the facts and circumstances of the case and also looking at the age and stage of the suit when it was dismissed. Since the defendant has not filed any reply opposing the motion, I am not awarding costs in their favour. I, therefore, proceed to pass the following order:-

(i) The notice of motion is made absolute in terms of prayer clause (a) subject to costs of Rs. 20,000/- (Rupees Twenty Thousand) to be paid by the Plaintiffs to the High Court Legal Services Committee within six weeks. Upon the costs being deposited within the stipulated period, the suit be restored to file and be placed before appropriate Court on 08.04.2009 for directions.

(ii) The statement of the learned Counsel for the parties is accepted that they will file written arguments in the matter so that the oral arguments can be curtailed and that they will co-operate as to dispose of the suit at the earliest.

(iii) The Notice of Motion to stand disposed of.

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