Hari Shanker v. Gobind Parshad Jagdish Parshad And Others, Supreme Court Of India, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Civil Appeals Nos. 700-02 of 2002 with No. 703 of 2002, decided on January 25, 2002

Disposition

allowed

Judges

Justice S.S.M. Quadri
Justice S.N. Variava

Acts

Section 14(1)(b) of the Delhi Rent Control Act
Section 722-24, Subsection 2000 of an unknown Act or Article (likely a court rule)
Order 9 Rule 13 of the Civil Procedure Code

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Smart Summary

Factual and Procedural Background

The appellant is the tenant of Premises Nos. H-18 and H-19, Gobind Mansion, Connaught Circus, New Delhi, owned by the first respondent. On 18 January 1985 the Additional Rent Controller ordered the appellant’s eviction on the ground of unlawful sub-letting under Section 14(1)(b) of the Delhi Rent Control Act. This eviction order was reversed by the Rent Control Tribunal on 22 July 1987.

The respondent-landlord thereafter filed Second Appeal From Order (SAO) No. 365 of 1987 on 15 December 1987 before the Delhi High Court. When the appeal was listed on 11 September 2000, the name of the appellant’s advocate was not printed in the daily cause list; the appellant consequently went unrepresented and the appeal was allowed ex parte, setting aside the Tribunal’s decision.

The appellant moved CMs Nos. 722-24 of 2000 seeking condonation of delay and setting aside of the ex parte order, but those applications were dismissed on 11 January 2001. The present Special Leave Petitions challenge that dismissal.

Legal Issues Presented

Whether the omission of an advocate’s name from the daily cause list constitutes “sufficient cause” under Order 9 Rule 13 of the Civil Procedure Code to justify setting aside an ex parte decree.

Arguments of the Parties

Appellant's Arguments

The advocate’s name was admittedly absent from the cause list on 11 September 2000; therefore the ex parte judgment should be set aside.
Reliance is placed on the Supreme Court decision in G. Raj Mallaiah v. State of A.P., (1998) 5 SCC 123, which recognized such an omission as a sufficient cause for non-appearance.

Respondent's Arguments

The High Court correctly noted the appellant’s longstanding lack of diligence, describing his conduct as cavalier and negligent.
Given this pattern of neglect, the High Court was justified in refusing to recall the ex parte order.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
G. Raj Mallaiah v. State of A.P., (1998) 5 SCC 123	Non-appearance of counsel due to absence of name in cause list is a “sufficient cause” under Order 9 Rule 13 CPC.	The Supreme Court followed this principle, holding that the omission justified setting aside the ex parte decree.

Court's Reasoning and Analysis

The Court observed that it is common practice for advocates to verify their cases through the daily cause list. When an advocate’s name is omitted, failure to appear cannot be attributed to negligence. Citing the G. Raj Mallaiah precedent, the Court held that such an omission constitutes “sufficient cause” within the meaning of Order 9 Rule 13 CPC.

The High Court’s adverse observations about the appellant’s diligence were deemed relevant only where the advocate’s name appeared yet counsel failed to attend. In contrast, where the name is missing, fault cannot be imputed to the party or counsel. Accordingly, the Supreme Court set aside the High Court’s order refusing to recall the ex parte judgment and restored SAO No. 365 of 1987 to the High Court’s file for fresh disposal.

Holding and Implications

Appeals Allowed; ex parte order of the Delhi High Court dated 11 September 2000 set aside; SAO No. 365 of 1987 restored to be heard afresh.

The parties were directed to appear before the High Court on 12 February 2002, with an expectation of prompt disposal. The decision primarily affects the litigants by reopening the landlord-tenant dispute; it reinforces, but does not expand, the existing precedent that omission of counsel’s name in the cause list is a sufficient ground for recall of an ex parte decree. No costs were awarded.

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Hari Shanker v. Gobind Parshad Jagdish Parshad And Others

Order

SLPs (C) Nos. 2166-68 of 2001

1. Heard Mr Dushyant Dave, learned Senior Counsel on behalf of the appellant and Dr A.M Singhvi, learned Senior Counsel on behalf of Respondent 1.

2. Leave is granted.

3. These appeals are directed against the judgment and order of the High Court in CMs Nos. 722-24 of 2000 in SAO No. 365 of 1987 passed by the High Court of Delhi at New Delhi.

4. The appellant is a tenant of Premises Nos. H-18 and 19, Gobind Mansion, Connaught Circus, New Delhi of which the first respondent is the landlord. On 18-1-1985 the appellant suffered an order of eviction from the Additional Rent Controller on the ground that he sub-let the premises — a ground available to the first respondent landlord to seek eviction under Section 14(1)(b) of the Delhi Rent Control Act. The appellant carried the matter in appeal before the Rent Control Tribunal. The Tribunal, by its order dated 22-7-1987 reversed the order of the Additional Rent Controller and allowed the appeal of the appellant. The first respondent filed the abovementioned second appeal from Order (SAO) No. 365 of 1987 on 15-12-1987. On 11-9-2000, when the second appeal came up for hearing, the name of the advocate of the appellant was not shown in the “cause list”. Consequently, the appellant went unrepresented. The learned Single Judge of the High Court, who dealt with the appeal, allowed the appeal ex parte and set aside the order of the Rent Control Tribunal. The appellant then filed applications, being CMs Nos. 722-24 of 2000 for condonation of delay and for setting aside the ex parte order dated 11-9-2000. These applications were dismissed on 11-1-2001. It is against that order, that the present appeals are filed.

5. Mr Dushyant Dave, learned Senior Counsel appearing for the appellant contends that admittedly on 11-9-2000 the name of the advocate of the appellant was not shown in the “cause list”. Therefore, the High Court erred in not setting aside the ex parte judgment of the High Court passed in the second appeal. In support of his submissions, learned Senior Counsel has relied upon the judgment of this Court in G. Raj Mallaiah v. State of A.P (1998) 5 SCC 123 Dr Singhvi, learned Senior Counsel, on the other hand, contends that the High Court in its judgment had pointed out that the appellant had never been vigilant in prosecuting the case and that he was always cavalier, lackadaisical and negligent. Therefore, the High Court rightly dismissed the applications.

6. The short question that arises for consideration is: whether not showing the name of the advocate for the appellant herein in the “cause list” is a sufficient cause to set aside the ex parte decree under Order 9 Rule 13 of the Civil Procedure Code.

7. It is a general practice in the High Courts that the advocates identify their case in the “cause list” of the day. An advocate's non-appearance in a case when the case is taken up on the ground that his name was not shown in the “cause list” is indeed a sufficient cause. (See G. Raj Mallaiah case (1998) 5 SCC 123.) However, the High Court remarked that the advocate did little more than filing the vakalatnama and that the appellant was negligent and cavalier in prosecuting his case. In our view those remarks would be relevant in a case where in spite of showing the name in the “cause list” the advocate did not appear. In a case where the name has not been shown in the “cause list” the petitioner or his counsel cannot be found fault with for non-appearance. In this view of the matter, we set aside the order under challenge and restore the second appeal to the file of the High Court, to be heard and decided afresh, in accordance with law.

8. Inasmuch as the eviction proceedings were initiated in 1972 and about 30 years' period has elapsed, we direct the parties to appear before the High Court on 12-2-2002 and we expect that the High Court will take up and dispose of the appeal on that date or if that is not convenient for the High Court, on any date immediately thereafter, in accordance with law.

9. The appeals are, accordingly, allowed. There shall be no order as to costs.

SLP (C) No. 3465 of 2001

10. Heard Mr Dushyant Dave, learned Senior Counsel on behalf of the appellant and Dr A.M Singhvi, learned Senior Counsel on behalf of Respondent 1.

11. Leave is granted.

12. In view of the order passed in SLPs (C) Nos. 2166-68, this appeal is allowed. There shall be no order as to costs.

Hari Shanker v. Gobind Parshad Jagdish Parshad And Others

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Hari Shanker v. Gobind Parshad Jagdish Parshad And Others

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