Dismissed

Sakundram v. Rupsingh

Chhattisgarh HC24 Jan 2022WP227/58/2022

Case brief

AI extract

What is this about?

In a writ petition under Article 227, the petitioner challenged an appellate order setting aside an ex parte decree. The High Court examined whether the lower courts erred in accepting a vakalatnama without proper attestation for an illiterate client and the advocate's subsequent non-appearance.

What did the court decide?

Writ petition is dismissed at the motion stage.

Sakundram Vs Rupsingh — Contract and Commercial Disputes | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR W.P.(227) No.58 of 2022

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Sakundram S/o Shri Heeralal Teli Aged About 50 Years R/o Village Dharashiv, Tahsil Bailaigarh, District Balodabajar Bhatapara Chhattisgarh. ---Petitioner

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Versus

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Rupsingh S/o Shri Sukhram Teli Aged About 36 Years R/o Village Dharashiv, Tahsil Bilaigarh, District Balodabajar Bhatapara Chhattisgarh - --Respondent

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For Petitioner: Shri Sunil Sahu, Advocate. For Respondent: None.

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Single Bench:Hon'ble Shri Deepak Kumar Tiwari, J Order On Board

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24.01.2022

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This Writ Petition has been filed under Article 227 of the Constitution of India against the order dated 24.12.2021 passed by the 3^rd Additional District Judge, Balodabazar, District Baloda Bazar-Bhatapara (CG) in Misc. Civil Appeal No.06/2019.

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Brief facts of the case are that the original Defendant-Budhwara Bai filed an application under Order 9 Rule 13 CPC for setting aside the ex parte decree on the ground that she is old and illiterate lady, she never received summon/notice of civil suit filed by the Respondent/Plaintiff, she has never been served with summons of the aforesaid suit and has never authorized any Advocate to appear on her behalf and in fact, someone by forging her thumb impression, has filed the vakalatnama on her behalf and thereafter the said counsel did not appear in the suit and ex parte decree was passed. To set aside the ex parte decree, the application preferred was dismissed by the trial Court on 04.12.2012 against which, the Misc. Appeal was filed which was

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also dismissed vide order dated 26.02.2018. The matter was remanded to the trial Court for deciding the application under Order 9 Rule 13 CPC for setting aside the ex parte decree afresh after conducting an enquiry vide order dated 25.01.2019 passed in W.P(227) No.268/2018. In pursuance of the said order, the Civil Judge, Class-II, Bhatgaon after conducting an enquiry, passed an order on 10.05.2019 and again dismissed the application filed under Order 9 Rule 13 CPC. The said order was challenged by the Respondent/Defendant in Misc. Civil Appeal No.06/2019 in which, vide order dated 24.12.2021, the Appeal was allowed and the ex parte decree passed in Civil Suit No.42-A/2010 has been set aside.

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Learned Counsel for the Petitioner submits that the trial Court has passed the order after recording the evidence of as many as 9 witnesses but the appellate Court has not considered the evidence and passed the impugned order, which is not illegally sustainable, therefore the same may be quashed and order dated 10.05.2019 passed by the trial Court may be restored.

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Heard learned Counsel for the Petitioner and perused the documents annexed with the Petition minutely.

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Rule 9A of Chhattisgarh Civil Court Rules & Order, 1961 was framed in exercise of the powers conferred by sub-rule (4) of Rule 4 of Order III, First Schedule, to the Code of Civil Procedure, which deals with the procedure for appointment of advocate in case of illiterate person and directs that an advocate or pleader shall not accept a document of his appointment as such from a person who is unable to write his name, unless it is attested by a literate person in the following form:

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“I A.B. hereby attest the mark of C.D. who is known to me and who affixed this mark in my presence, declaring that he thereby appointed E.F. advocate/pleader, to act for him in the above name case.

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Dated.................................

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Signature......................................

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If the person is unable to have the document so attested it may be accepted in Court in the presence of the presiding Judge who should endorse there on that the document was accepted in his presence.

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It is explicit that when a Vakalatnama is executed by a party who appears to be illiterate, the attester shall certify that the Vakalatnama was translated, read and explained in his presence to the executant, in the language known to such executant, that he seemed to understand it and that he signed or affixed his thumb mark in his presence with full knowledge and understanding. However if Vakalatnama is filed in the Court without the aforesaid compliance then it is the duty of the Court before accepting the appointment to verify and endorse such document. So, the aforesaid rule is engrafted to prevent any foul practice to any illiterate person and the aforesaid safeguard provided is required to be compiled by the Subordinate Courts before accepting the appointment of an advocate in any case. In the present case the advocate who had filed the Vakalatnama (Ex.P-1) before the trial court did not turn up on the date of hearing, therefore, the trial court proceeded ex parte . The said advocate admittedly stated that no such attestation or endorsement was made in the vakalatnama and further stated that signature of attesting witness was not obtained in the Vakalatnama in case of illiterate person.

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Looking to aforesaid circumstances, this Court finds it appropriate that the Registrar General should take necessary steps for issuing guidelines to the judicial officers for following the said rule.

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It is also settled that an advocate has no right to remain absent from the Court when the case of his client comes up for hearing. He is duty bound

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to attend the case in Court or to make an alternative arrangement. Nonappearance in Court without `sufficient cause' cannot be excused. Such absence is not only unfair to the client of the advocate but also unfair and discourteous to the Court and can never be countenanced. At the same time, however, when a party engages an advocate who is expected to appear at the time of hearing but fails to so appear, normally, a party should not suffer on account of default or non-appearance of the advocate.

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In the matter of Rafiq & Anr. V. Munshilal & Anr. reported in ( 1981) 2 SCC 788 it was observed that :

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"The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest.”

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To set aside an ex parte decree the defendant has to prove in front of the court that there was a sufficient cause which prevented him from appearing in the proceedings on the due date . The term “sufficient cause” is nowhere defined under the code and therefore, the meaning of the term ‘sufficient cause’ has to be determined by the courts liberally keeping in view the facts and circumstances of the case. No party should be condemned unheard unless there has been something equivalent to misconduct or gross negligence on his part. In the order impugned to set aside the ex parte decree dated 10.05.2019, the proper reason has rightly been mentioned in para 15 that the Court has accepted the vakalatnama without the signature of attesting witness and further in para 17 that the advocate has not informed the party about his non appearance on the date of hearing.

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In view of above, this Court does not find any error for which any interference is warranted. Therefore, this petition is devoid of substance and is accordingly dismissed at the motion stage.

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A copy of this order be forwarded to the Registrar General with reference to para-7 for doing the needful.

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Sd/-

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(Deepak Kumar Tiwari) JUDGE

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Priya

Sakundram v. Rupsingh

Case brief

What is this about?

What did the court decide?

Sakundram v. Rupsingh

Case brief

What is this about?

What did the court decide?

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