Petitioner: Salil Dutta v/s
Respondent: T.M. And M.C. Private Ltd.
Bench: Jeevan Reddy, B.P. J, Jeevan Reddy, B.P. J Reddy, K. Jayachandra J
Date Of Judgment 05/02/1993
- The plaintiff has filed an appeal in opposition to the decision and
ruling of a division bench of the Calcutta High court which upheld the
defendant's appeal. Moreover, the Supreme Court heard an appeal concerning an
order of the city civil court in Kolkata dismissing a request by the defendant
to overturn the ex parte judgement that was made against him in accordance with
Order 9 Rule 13 of the CPC.
- The plaintiff/appellant filed a lawsuit to evict the defendant-tenant on
the grounds that he was in default on his rent payments and that he needed
the space for his own use and occupation. On September 6, 1988, seven years
after it was instituted, the lawsuit was set for a final hearing.
- The defendant claims that his attorney told him that he was not required
to be present at the suit's hearing on June 9, 1988, or thereafter until his
applications under Order 14 Rule 5 and Order 6 Rule 16 of the Civil Process
Code were resolved. On June 6, 1988, the defendant's attorney requested for
a postponement until the next day. Hence, it was called to adjourn. The
defendant was set ex parte on June 10 since neither the defendant's attorney nor the
defendant showed up.
Brief on: Rafiq v. Munshilal AIR 1981 SC 1400
- Order IX Rule 13
One of the fundamentals of natural justice is known in Latin as "udi Alteram
Partem" or "Listen to both sides". Every party is entitled to an impartial
hearing. The court will issue summonses and notifications to appear before the
court if any party fails to appear on the scheduled day. If a plaintiff was
present during the course of a civil suit but the defendant was not, and a
summons had been issued, the court could proceed against the defendant and issue
an ex-parte decree.
- Whether the ruling in Rafiq v. Munshilal AIR 1981 SC 1400 has any
relevance to the current situation.
The appellant filed an application for the recall of the judgement dismissing
the appeal and for permission to take part in the appeal hearing after learning
that the High Court had denied his appeal on the grounds that his advocate was
not present in the court when the matter was called for hearing.
It was held that an innocent party should not be compelled to suffer because of
the inaction, wilful omission, or misdeed of his agent after doing everything in
his ability to properly engage in his proceedings by giving the Advocate his
case. Whatever the reason the advocate's absence from court may have been, the
innocent party could not be made to suffer injustice because of his advocate.
Legal and ethical aspects of Salil Dutta vs T.M. And M.C. Private Ltd
The defendant is a private limited corporation with its registered office in
Kolkata. The defendant, in contrast to Rafiq, is a smart businessman who is
familiar with all the court's rules and procedures. The defendant has chosen not
to appear in court in order to slow down the case's progress. The defendant
claims that their attorney told them not to show up in court unless and until
the court rules on their interlocutory application during the final hearing. It
is extremely unlikely that the advocate will offer such counsel to his client.
It is also unlikely that such informed customers would be unaware of the
possibility of a bad outcome if they choose not to participate in the case's
final hearing. In addition to this, the defendant's advocate's statement
contained a lot of discrepancies. The learned attorney claimed in his deposition
that he had not submitted an application for adjournment on June 9, 1988,
however it was clear from the court file that the court had been adjourned for
June 10, 1988, as a result of the defendant's attorney's request to
cross-examine the witnesses.
Secondly, they observed that the advocate is the agent of the party. It was
observed by the court that he was acting on the instructions of his principal
i.e the party who engaged him. It is hard to believe that an educated
businessman who resides in Calcutta fails to understand the procedure of the
court. There are cases when an innocent litigant who is usually a poor person
who is not aware of the procedures of the case and who lives in villages misses
the proceedings of the case because of his advocate, in those cases the Apex
court of our country set aside those order to protect the interest of the
innocent litigant. But this rule is not absolute in nature. Every case has to be
judged according to its merit.
This case was won in favour of the client because the defendant's attorney
neglected to carry out his obligation to the court; rather than helping the
court, he opted to act as an agent of his client and tried to mislead the court.
A lawyer's dual roles as court representative and client advocate are mutually
exclusive. In order to uphold one's honour and the reputation of the legal
profession, one must adhere to certain norms of conduct. Any transgression of an
advocate's code of conduct will be viewed unfavourably and with contempt.
The appeal is granted for the aforementioned reasons. The Calcutta High Court's
Division Bench order dated 3.1992 is revoked, and its order from 8.7.1991 is
reinstated. The company-defendant is responsible for paying the appellant's
expenses in this appeal, which are estimated to be Rs. 5,000.
According to me it is true that, in some circumstances, the court may, in the
interest of justice, set aside a dismissal order or an ex parte decree
notwithstanding the negligence and/or misconduct of the advocate where it finds
that the client was an innocent litigant, but there is no such unalterable rule
that a party can disown its advocate at any time and seek relief. Putting the
entire blame upon the advocate and trying to make it out as if they were totally
unaware of the nature or significance of the proceedings is a theory which
cannot be accepted and ought not to have been accepted.
- https://tilakmarg.com/notes/advocate-acts-as-an-agent-of-the-party-and-his-acts-cannot-be-ordinarily-disowned/, n.d.
- https://indiankanoon.org/doc/1056576/, n.d.
- https://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=003991801000&CaseId=003991801000, n.d.