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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Piyush Garg
  • Advocate
  • for the revisionist Neeraj Garg
  • Advocate
  • for the respondent.
Judges
  • Hon’ble Mr. Justice Tarun Agarwala (Sr. Judge, Alld.)
Acts
  • provision of Order 3 Rules 1 and 2 of the CPC,
  • SECTION 5 LIMITATION ACT
  • Order III, rules 1 and 2, CPC,
  • Order 9 Rule 13 of the CPC
  • Order 9 Rule of the CPC.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Piyush Garg
  • Advocate
  • for the revisionist Neeraj Garg
  • Advocate
  • for the respondent.
Judges
  • Hon’ble Mr. Justice Tarun Agarwala (Sr. Judge, Alld.)
Acts
  • provision of Order 3 Rules 1 and 2 of the CPC,
  • SECTION 5 LIMITATION ACT
  • Order III, rules 1 and 2, CPC,
  • Order 9 Rule 13 of the CPC
  • Order 9 Rule of the CPC.
See more information ...
Smart Summary

Structured Summary of the Opinion (Tarun Agarwala, J.)

Factual and Procedural Background

Two eviction suits were instituted in 2007. Proceedings continued with multiple adjournments. The trial court became vacant from January 2010 due to non-availability of a presiding officer. The suits were transferred to the court of the 2nd Additional District Judge, Dehradun, by an order dated 23rd July 2010; the transferee court listed the matter for 30th July 2010 for plaintiff's evidence. Notice to the defendant's counsel was issued and received on 30th July 2010. The defendant's counsel sought an adjournment on 30th July 2010; the adjournment was refused and the plaintiff's evidence was closed. The court fixed 6th August 2010 for defendant evidence. On 6th August 2010 the defendant appeared in person, sought adjournment because his counsel was out of station; the trial court rejected that application but, in the interest of justice, adjourned to 9th August 2010. On 9th August 2010 no one appeared for the defendant; the court closed the defendant's evidence and fixed 10th August 2010 for hearing. On 10th August 2010 the matter was heard ex parte and judgment was reserved and pronounced on 12th August 2010, resulting in a decree against the defendant.

Thereafter, the defendant's counsel applied for a copy of the judgment on 7th September 2010. On 12th October 2010 an application under Order 9 Rule 13 of the Civil Procedure Code (CPC) was filed accompanied by an application under Section 5 of the Limitation Act to condone delay in filing revision. The Section 5 application was rejected on 2nd November 2010. Two revisions were filed against the rejection of the Section 5 application and two separate revisions were filed challenging the ex parte decree; all four revisions were clubbed and heard together.

Legal Issues Presented

  1. Whether the applications under Section 5 of the Limitation Act and Order 9 Rule 13 CPC (to recall/review the ex parte decree and condone delay) should be allowed given the procedural history and conduct of the defendant and his counsel.
  2. Whether the deposition of the power of attorney holder for the decree-holder could be treated as admissible evidence to support the ex parte decree, having regard to the principle in the cited Supreme Court decision(s) concerning the scope of an attorney's testimony (Order III, rules 1 and 2 CPC).

Arguments of the Parties

Revisionist / Applicant's Arguments

  • The lower court was in a hurry to dispose of the matter after transfer — the movement of the case from 30th July 2010 to decree on 12th August 2010 evidences haste.
  • The applicant was unaware of the date(s) fixed and first learned of the ex parte decree when an Amin (official) visited on 10th October 2010.
  • The applicant was assured by his counsel that he need not worry and that he would be informed of dates and would appear to protect the applicant's interest.
  • The matter should be decided on merits and the applicant should not be non-suited because his Advocate failed to appear.

Respondent / Opposite Party's Arguments

  • The applicant was aware of the dates fixed by the transferee court and deliberately chose not to appear to scuttle proceedings.
  • The order-sheet shows the applicant had repeatedly sought adjournments and employed dilatory tactics to prolong the case.
  • Consequently, the trial court was justified in rejecting the application under Order 9 Rule (as referred to in the record) and the application under Section 5 of the Limitation Act.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
AIR 2009 SC 514 — Secretary, Department of Horticulture, Chandigarh & another v. Raghu Raj Principle that absence of an Advocate is generally not a ground to exempt a party from the consequences of non-appearance; parties normally should not suffer because of an Advocate's default; Advocate is duty-bound to attend or make alternative arrangements. The court relied on this principle to observe that the applicant and his Advocate were not fair to the court, and that the applicant cannot escape consequences merely by blaming his Advocate for non-appearance.
Jank(Vashdeo Bhojwani and another v. Indusind Bank Limited and another, AIR 2005 SC 439 (referred to also as Janki Vashdeo Bhojwani) Interpretation of Order III, rules 1 and 2 CPC: holder of power of attorney may "act" on behalf of the principal and may depose only in respect of acts done by him in pursuance of the power; he cannot depose in place of the principal on matters requiring the principal's personal knowledge. The court applied this principle to the power of attorney holder's testimony and found that the POA-holder had deposed to facts within his personal knowledge arising from acts he performed (e.g., receipt and deposit of rent, issuing notices on instructions, witnessing signature), and therefore his testimony was admissible and sufficient to support the decree.

Court's Reasoning and Analysis

The court conducted a fact-based analysis of the procedural history and the applicants' conduct in the trial court. Key steps in its reasoning were:

  1. Notice and appearance history: The court relied on the transfer order (dated 20th July 2010) and the trial court order-sheet to establish that the defendant's counsel received due notice and appeared on 30th July 2010; the counsel sought an adjournment which was refused and the next date, 6th August 2010, was fixed.
  2. Personal appearance of applicant: The applicant himself appeared in person on 6th August 2010 and sought adjournment on the ground that his Advocate was out of station. That application was rejected but the court, in the interest of justice, fixed 9th August 2010 for defendant evidence. Thus the applicant was demonstrably aware of the proceedings and subsequent dates.
  3. Non-appearance and ex parte decree: On 9th August 2010 neither the applicant nor his counsel appeared, the evidence for defendant was closed and the decree was passed after ex parte hearing on 12th August 2010. The court treated the applicant's later claim of ignorance (that he first learned on 10th October 2010) as an afterthought intended to bring the application within limitation.
  4. Delay in filing and awareness: The applicant's application for a copy of the judgment on 7th September 2010 evidenced awareness of the ex parte decree. The court concluded the applicant did not file timely proceedings to challenge the decree and then belatedly sought to invoke Section 5 of the Limitation Act; the trial court correctly rejected condonation of delay because the applicant knew of the decree earlier.
  5. Role and duty of Advocates: Citing the Supreme Court decision in AIR 2009 SC 514, the court reiterated that once an Advocate is engaged and paid, he must attend hearings or arrange alternatives; absence of counsel without sufficient cause is not ordinarily excusable and the litigant must exercise an onus to be aware of proceedings.
  6. Assessment of motive and past conduct: The court noted entries on the order-sheet showing the applicant previously sought adjournments and used dilatory tactics, concluding the applicant and his Advocate deliberately chose not to appear and were not entitled to relief.
  7. Examination of evidence from power of attorney holder: To address the applicant's contention that the POA-holder could not depose for the principal, the court examined the power of attorney instrument and the POA-holder's statement. Finding the POA granted wide authority to manage and supervise properties and that the POA-holder testified to acts done by him (collection/deposit of rent, issuing notice on instructions, witnessing signature), the court applied the Supreme Court principle from the 2005 decision and concluded that such testimony was within the permissible scope and admissible.
  8. Result of combined analysis: Because the applicant was aware of proceedings, delayed and used dilatory tactics, and because the evidence relied upon (POA-holder evidence) was legally permissible, the court found no error in the trial court's orders rejecting the Section 5 application and the Order 9 Rule 13 application and affirmed the ex parte decree.

Holding and Implications

Holding: All revisions are dismissed.

Implications and direct consequences:

  • The applications under Section 5 of the Limitation Act and Order 9 Rule 13 CPC (seeking to set aside the ex parte decree/condone delay) were rightly rejected by the court below and the revisions challenging those rejections have failed.
  • The court held that the deposition of the power of attorney holder was admissible and sufficient in this case because it related to acts performed by the POA-holder under a broad power of attorney; the challenge to the decree on this ground failed.
  • All revisions are dismissed and the parties are directed to bear their own costs.
  • Practical interim relief to the applicant: The court granted the applicant time until 31st March 2011 to hand over vacant and peaceful possession, on condition that the applicant deposits the entire decretal amount (if not already deposited) and pays advance rent up to March 2011 on or before 15th January 2011. In case of default on these conditions, that portion of the order allowing time to vacate will automatically stand vacated and the opposite party may proceed with eviction.
  • The opinion applies existing Supreme Court authority and the Court did not purport to lay down any new law or broader precedent; the decision affirms the application of those authorities to the facts before the court and limits relief because of the applicant's conduct and procedural history.

Disposition: Revisions dismissed; parties bear their own costs; conditional time granted for vacation of premises until 31st March 2011 subject to deposits by 15th January 2011.

Show full summary ...

    Sunil Agarwal v. Madhvi Thakur

    Tarun Agarwala, J.-

    Two suits were filed for eviction in the year 2007 and, since then, the proceedings have been going on and the matter was being adjourned for one reason or the other. It has been stated that since January, 2010, the trial court became vacant on account of the non-availability of a Presiding Officer. On 23rd July, 2010, the case was transferred to the court of 2nd A.D.J., Dehradurv and 30th July, 2010 was fixed as the date for the evidence of the plaintiff. Notice to the coun­sel was issued which was duly received on 30th July, 2010. An application was filed by the plaintiff's counsel for adjournment which was rejected by an order dated 30th July, 2010 and the evidence of the plaintiff's witnesses was closed. The trial court, thereafter, fixed 6th august, 2010 as the next date fixed for the evidence of the defendant's witnesses.

    2. On 6th August, 2010, the defendant appeared in person alongwith an applica­tion for adjournment on the ground that his counsel was out of station. The trial court rejected this application but adjourned the matter in the interest of justice and fixed 9th August, 2010 for the examination of the defendant's witnesses. On 9th August, 2010 when the case was called out, no one appeared on behalf of the defendant. The court accordingly closed the evidence of the defendant and fixed 10th August, 2010 for hearing. On 10th August, 2010, the matter was heard ex-parte since the defen­dant did not appear nor his counsel appeared and the judgment was reserved and was pronounced on 12th August, 2010 and the suit of decreed.

    3. From the record, it transpires that the counsel for the defendant applied for judgment on 7th September, 2010 and, thereafter, filed an application under Order 9 Rule 13 of the CPC on 12th October, 2010 alongwith an application u/S. 5 of the Limitation Act to condone the delay in filing the revision. The application u/S.5 of the Limitation Act was rejected by an order dated 2nd November, 2010. Against the rejection of the Section 5 application, two revisions have been filed. The revisionist has also challenged the ex-parte decree dated 12th August, 2010 by filing two sepa­rate revisions. All the four revisions have been clubbed and are being heard together.

    4. Heard Sri Piyush Garg, the learned counsel for the revisionist and Sri Neeraj Garg, the learned counsel for the respondent.

    5. The learned counsel for the revisionist submitted that from a perusal of the order-sheet it is clear that the court below was in a hurry to dispose of the matter for reasons best know to the court and that the case was transferred and the first date fixed was 30th July, 2010, and ultimately the case was decreed on 12th August, 2010. The very nature of the movement of the case indicates that the court below was in a hurry to dispose of the matter. The learned counsel submitted that the applicant was not aware of the date fixed by the court below and that he came to know for the first time when-the Amin visited the spot on 10th October, 2010 and only then came to know about the ex parte decree. The learned counsel further submitted that the applicant was assured by his counsel that he need not worry and that as and when the date is intimated he would appear and protect his interest. The learned counsel submitted that the matter should be decided on merits and that the applicant should not be non-suited on the ground that his Advocate could not appear.

    6. On the other hand, the learned counsel for the opposite party submitted that the applicant was aware of the date fixed and deliberately chose not to appear and contest the matter and that the entire effort of the applicant was to scuttle the pro­ceedings. The learned counsel further submitted that a perusal of the order sheet would indicate that the applicant was continuously getting the matter adjourned and was doing his utmost best to ensure that the case was prolonged for one reason or the other. The learned counsel consequently submitted that the court below was justified in rejecting the application under Order 9 Rule of the CPC.

    7. Having heard the submissions of the learned counsel for the parties, the Court finds that the case was transferred by an order dated 20th July, 2010 intimating the parties that the case would be listed on 30th July, 2010 before the transferee court. The applicant's counsel received due notice and appeared on the date fixed before the transferee court on 30th July, 2010 and moved an application for adjournment, which was rejected and 6th August, 2010 was fixed as the next date. The applicant's counsel was consequently aware of the next date fixed i.e. 6th August, 2010. The fact that the applicant was aware is fortified by the fact that the applicant himself appeared before the transferee court on 6th August, 2010 and filed an application for adjournment in person. This application was rejected by the trial court, but in the interest of justice, the trial court fixed 9th August, 2010 for the evidence of the defendant's witness. On 9th august, 2010, neither the applicant nor his counsel ap­peared and consequently the matter proceeded ex parte and a decree was passed on 12th August, 2010. This Court further finds that the judgment was applied by the applicant on 7th September, 2010, which goes to prove that the applicant was aware of the ex parte decree and inspite of getting the copy of the judgment, did not file the application within the stipulated period, but waited for quite some time and then filed the application under Order 9 Rule 13 of the CPC alongwith an application under Section 5 of the Limitation Act. The contention that the applicant came to know about the ex parte decree on 8th October, 2010, is patently erroneous and an afterthought and the said date has been chosen in order to bring the application within the period of limitation. From the order sheet of the trial court is clear that the applicant was aware when the case was transferred to the transferee court. The applicant's counsel appeared and on a subsequent date the applicant himself appeared in person. Con­sequently, this Court is of the opinion that the applicant was aware of the proceed­ings and choose not to appear and prepared to watch the proceedings from outside. The entire effort of the applicant appears to scuttle the proceedings and to stall the hearing of the case for one reason or the other. In the light of the aforesaid, the court below was justified in rejecting the application under Section 5 of the Limitation Act holding that the applicant was aware of the proceedings.

    8. The submission of the learned counsel for the applicant that the applicant should not be made to suffer on the ground of any fault being committed by the Advocate, is no doubt true and in this regard the courts have been consistent with the view that the absence of the Advocate is not only unfair to his client but also unfair and discourteous to the court and that a party normally should not suffer on account of default of non-appearance of the Advocate.This principle has been enun­ciated by the Supreme Court in AIR 2009 SC 514 in the matter of Secretary, De­partment of Horticulture, Chandigarh & another v. Raghu Raj.

    9. No doubt, in our present adversary legal system, the parties generally appear through their Advocates. Once an Advocate is engaged and he is paid his fee, the Advocate has no right to remain absent from the court when the case of his client comes up for hearing. The Advocate is duty bound to attend the case or to make alternative arrangement in case he is unable to appear for one reason or the other. Non-appearance of the Advocate in the court without sufficient cause cannot be excused. In the present case, the applicant has blamed the ex parte proceedings on the ground that his Advocate did not appear. The Court finds that such allegation has unfairly been leveled on the Advocate of the applicant. The applicant himself ap­peared and sought adjournment on the ground that his Advocate was out of Station on 6th August, 2010.The application was rejected and the matter was adjourned. The application was aware of the next date fixed. There is nothing to indicate that the applicant had informed his Advocate and that the Advocate did not appear on the next date. There is nothing to indicate that the applicant did not find out about the date fixed from his Advocate. It is also the onerous duty of the applicant to be aware of the proceedings in his case and it is not sufficient to allege that he had left the matter at the hands of his Advocate and sat at home having being assured that nothing adverse would happen against him.

    10. In the light of the aforesaid, this Court finds that neither the applicant nor his Advocate was fair to the court and the applicant and his advocate deliberately chose not to appear before the court for the reasons best known to them. No doubt, the court is always of the opinion that the matter should be decided on merits and that full opportunity should be given to all the parties concerned, but in the present case, the conduct of the applicant makes it clear that he is not entitled for any relief. The order sheet indicates that in the past the applicant had tried to delay the proceedings by adopting all kinds of dilatory methods. The present one is another kind of a dilatory tactic which he adopted but not successful. The Court finds that the applicant had knowledge of the proceedings and did not choose to appear and consequently was not entitled to recall the order. The application under Section 5 of the Limitation Act and consequently the application under Order 9 Rule 13 of the CPC was rightly rejected. The Court does not find any error in the impugned order. The revisions against the said order consequently fail and are dismissed.

    11. Insofar as the merit of the ex parte decree is concerned, the only ground urged by Sri Piyush Garg. the learned counsel for the applicant is that, the suit was decreed on the basis of the statement given by the power of attorney holder of the .opposite party and that the power of attorney holder could only act at the behest of the principal, but could not appear in the witness box on her behalf. In support of his submission, the learned counsel placed reliance upon a decision of the supreme Court in Jank(Vashdeo Bhojwani and another v. Indusind Bank Limited and another, AIR 2005 SC 439, wherein the Supreme Court, after considering the provi­sion of Order 3 Rules 1 and 2 of the CPC, held that the power of attorney holder can only act on behalf of the principal, but court not depose on behalf of the principal. The Supreme Court, however, clarified that if the power of attorney holder had rendered some acts in pursuance to power of attorney, he could depose for the principal in respect of such acts which he had performed, but could not depose for the principal in respect of the matter which only the principal could have a personal knowledge. The Supreme Court held:

    "13.Order 111 rules 1 and 2, cpc, empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in Order III, rules 1 and 2, CPC, confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowl­edge and in respect of which the principal is entitled to be cross-examined."

    12. In the light of the aforesaid decision of the Supreme Court, the learned coun­sel submitted that the power of attorney holder could not depose that the applicant was in arrears of rent or could not depose about the validity of the notice sent by the opposite party to the applicant nor could the power of attorney holder depose that the signature appended in the notice was that of the opposite party since all these infor­mation were the personal knowledge of the opposite party and only the opposite party could appear and make such deposition and that such deposition could not be made on her behalf by a third party including the power of attorney holder.

    13. The submission of the learned counsel for the applicant appeared to be at­tractive in the first blush, but on a closer scrutiny, the Court finds that the submission is devoid of merit. In order to test the submission of the learned counsel for the applicant in the light of the principle evolved by the Supreme Court in the case of Janki Vashdeo Bhojwani (supra), the Court has perused the statement given by the power of attorney holder before the trial court and has also perused the power of attorney given in favour of the holder. The Court finds that the power of attorney was given to manage, control, supervise and look after all the properties in any State in India belonging to the opposite party. The said power of attorney gave a wide power to the power of attorney holder. The power of attorney holder further deposed that the applicant used to give rent to him and thereafter he used to deposit the same in the account of the opposite party and that when the applicant fell in arrears of rent, the notice terminating the tenancy was issued by the opposite party on the instructions given by him and that the opposite party had signed the notice in his presence. These facts which the power of attorney holder deposed was in his personal knowl­edge which he could depose since he had performed such acts on behalf of the principal. The Supreme Court has categorically stated that the power of attorney holder may depose for the principal in respect os such acts which he has rendered in pursuance to execution of the power of attorney in his favour, but could not depose for the principal for the acts done by the principal and not by him. In my opinion, the deposition made by the; power of attorney holder clearly indicates that he had de­posed only those things for the acts which he had done himself and which had not been done by the principal.

    14. In the light of aforesaid/the contention of the learned counsel for the appli­cant that the deposition of the power of attorney holder could not be taken into consideration as a valid piece of evidence, is patently erroneous. No other ground was raised to challenge the decree passed by the trial court. Consequently, the revisions challenging the decree also fail and are dismissed.

    15. In the light of the aforesaid, all the revisions are dismissed. Parties are directed to bear their own cost.

    16. After the aforesaid order was passed, the learned counsel for the applicant prayed that some reasonable time may be granted to the applicant to vacate the premises in question. Since the applicant is carrying on his. business from the shops in question, the Court finds that the time till 31 st March, 2011, would be sufficient to handover vacant and peaceful possession. Consequently, the Court grants time till 31 st March, 2011, to handover vacant and peaceful possession to the opposite party provided he deposits the entire decretal amount, if not deposited, on or before 15th January, 2011, and also deposits the advance rent till March, 2011, on or before 15th January, 2011. In case of default; this portion of the order shall stand automatically vacated and it would be open to the opposite party to proceed with the eviction of the applicant.

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    Comments

    Sunil Agarwal v. Madhvi Thakur
    (Dec 21, 2010)