2013(1) ALL MR 92
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.Y. CHANDRACHUD AND A.A. SAYED, JJ.

H. P. Mehta Vs. M/S. Anurag Sites

Notice of Motion No.1504 of 2012,Appeal No.110 of 2010,Suit No.1001 of 1985

3rd October, 2012

Petitioner Counsel: Mr. Mihir Desai, Ms. Ushajee Peri
Respondent Counsel: Mr. Mayur Khandeparkar, Mr. Jatin Sheth, Mr. Tanvir Shaikh

Civil P.C. (1908), O.41 Rr.19, 11, O.9 R.8 - Appeal dismissed for default - Re-admission - Expression "does not appear" is not defined under O.41 R.11(2) - However, the appearance thereunder must mean effective appearance and not merely an appearance by remaining physically present or in attendance before the Court.

O.41 R.11(4) of Civil P.C. stipulates that where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so. The provisions of Rule 11(4) do not define the ambit of the expression "does not appear" in Rule 11(2). The consistent view which has been taken by the Courts in the country is that appearance must mean, where a plaintiff or a defendant appears through an advocate; appearance through an advocate who is able to assist the Court by answering all material questions in the suit. The same meaning must be ascribed to the words used in the context of the power of the Appellate Court in Order XLI, Rule 11(2). In the instant case the Motion sought condonation of a delay of 82 days in filing the appeal. The counsel appearing on behalf of the Appellant-Applicant stated that he had no instructions. It was in this background that the Motion was disposed of as not pressed and the appeal consequently was treated as being disposed of. Evidently, the Advocate who appeared on behalf of the Appellant, instructed by the attorneys who had entered appearance, had no instructions and was unable to make any effective submissions on behalf of the Appellant. The appearance for the purposes of Order XLI, Rule 11(2) must mean effective appearance and not merely an appearance by remaining physically present or in attendance before the Court. Consequently, it would have to be held that the Court when it proceeded to dismiss the Motion for condonation of delay, exercised powers under Order XLI Rule 11(2). Consequently, the appeal could be restored to file, if a case within the meaning of Rule 19 of Order XLI has been made out.

AIR 1928 Mad. 831, (1943) 45 Bom. L.R. 697 (F.B). Rel. on. [Para 10,16,17]

Cases Cited:
R.Namperumal Naidu Vs. Alwar Naidu, AIR 1928 MAD 831 [Para 10]
Shidramappa Irappa Shivanagi Vs. Basalingappa Kushaoppa Kumbhar, (1943) 45 BOMLR 697 [Para 11]
Satish Chandra Mukerjee Vs. Ahara Prasad Mukerjee, I.L.R. (1907) CAL. 403 [Para 11]
Mariannissa Vs. Ramkalpa Gorain, I.L.R. (1907) CAL. 235 [Para 11]
Fertilisers and Chemicals Travencore Ltd. Vs. Rajkumar Lines Limited, (1970) 72 BOMLR 271 [Para 12]
Rajana Venku Naidu Vs. Manugula Raja Naidu, AIR 1984 AP 72 [Para 13]
P.Ganeshan Vs. UCO Bank represented by its Branch Manager, Namagiripet Branch and others, (1999) 98 Comp. Cas. 370 (MAD) [Para 14]
Kaliappa Vs. Kumarasami, AIR 1926 MAD 971 [Para 14]
Kuruvilla Chandy Vs. Hassar Bava Rawther, 1969 K.L.T. 402 [Para 14]
Allah Bux Vs. Budha, AIR 1939 ALL 451 [Para 14]
Sonubai Baborao Gaikwad Vs. Shivajirao Krishnarao Gaikwad, AIR-1921 BOMBAY 20 [Para 15]
Raja Debi Bakhsh Singh Vs. Habib Shah, 40 I.A.150 [Para 15]


JUDGMENT

-Dr. D. Y. CHANDRACHUD, J. :- This Notice of Motion has been taken out for : (i) Condonation of a delay of 828 days in filing the Motion; and (ii) For recalling an order dated 15 February 2010 passed by a Division Bench in appeal dismissing a Motion for condoning a delay in filing the appeal and disposing of the appeal upon a statement made by counsel that he had no instructions from the Applicant.

2. An appeal was filed before this Court against a judgment and order of a learned Single Judge dated 20 October 2008 in a suit of 1985. The suit was instituted by the Respondent for recovery of rent in respect of a hoarding situated on a building and for damages in respect of another hoarding and for recovery of mesne profits. The suit was decreed for compensation computed at the rate of Rs.875/- per month for 36 months prior to the filing of the suit and for mesne profits at the rate of Rs.200/- per day from the date of institution of the suit until the hoarding is removed.

3. On 29 January 2010, the appeal was adjourned by consent, by a period of two weeks by the Division Bench. On 15 February 2012, the appeal was disposed of in the following terms :

"1. The learned counsel appearing for the appellant-applicant states that they have no instructions from the applicant.

2. Hence, the Motion is disposed as not pressed. Consequently, the Appeal under lodging No.91 of 2009 also stands disposed off."

4. In the affidavit-in-support of the Notice of Motion, it has been stated by the Applicant that when the suit was pending and in the earlier proceedings he was represented by Mr.Pramesh Vakil, Advocate and his junior Mr.Devendra Udani. After the decision in the suit, his Advocates requested the Applicant to meet Mr.Tolat of M/s.L.C.Tolat & Company. Accordingly, the Appellant approached Mr.Tolat and the appeal has been filed through his firm. In paragraphs 3 and 4 of the affidavit-in-support it has been stated as follows :

"3. However, I was constantly in touch with Mr.Vakil and more so with Mr.Devendra Udani, who were my earlier lawyers. In fact Mr.Udani though not working in the solicitor's firm of L.C.Tolat & Co. appeared for me in the matter even at the appellate stage as is obvious from an order dated 29.1.2010 passed at one of the stages in the appeal. Copy of the order dated 29.1.2010 is annexed hereto and marked as Exhibit-B. I was constantly in touch not with Mr.Lalu Tolat but with Mr.Udani who was at that time junior of Mr.Vakil who was my earlier lawyer. Mr.Udani kept on telling me that he is looking after the matter in the appeal stage and will inform me in case there is any need or for any further instructions from me.

4. I was therefore shocked when in the third week of May 2012 I received a notice being notice no.845 of 2012 in Execution Application No.447 of 2012 which effectively directed me to show cause as to why the decree passed against me on 20 October 2008 should not be executed. A copy of the notice dated 14 May 2012 is annexed hereto and marked as Exhibit-C."

Thereafter, it has been stated that the Appellant inquired with Mr.Udani and Mr.Vakil, but due to the vacation of the Court, he took time to contact the lawyers. Finally it has been stated that he obtained a copy of the order dated 15 February 2010 which was passed by the Court in appeal. Moreover, it has been stated that the Appellant was willing to give instructions to his lawyers at all times and if they did not want to represent him, they ought to have applied for discharge.

5. On behalf of the Respondent, the Motion has been opposed by counsel on the following grounds :

(i) In the present case, the dismissal of the appeal was under Order XLI, Rule 11(1) of the Code of Civil Procedure, 1908;

(ii) The power of the Appellate Court to direct readmission of an appeal is prescribed by Order XLI Rule 19. Rule 19 refers to a situation where the appeal has been dismissed under Rule 11(2) or Rule 17. In the present case, the dismissal of the appeal was not under Rule 11(2) or Rule 17 of Order XLI and it is only to those categories that Order XLI Rule 19 applies and where the Appellate Court can direct readmission of the appeal;

(iii) In the present case, the Appellant, though not personally present, must be regarded as having appeared since the Advocate who had entered appearance on his behalf had appeared before the Court;

(iv) Even on merits, in a suit of 1985, a decree was passed in 2008. The website of the High Court provides the status of orders that are passed. An allegation has now been made against the Advocate to the effect that he had not duly informed the Appellant. Learned counsel submitted that on merits no case for restoration has been made.

6. Order XLI, Rule 11(1) provides that the Appellate Court may, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day dismiss the appeal. Rule 11(2) stipulates that if on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Under Rule 11(4), where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment. The provisions of Rule 11 of Order XLI fall in that part of the Order XLI which provides for the procedure for admission of an appeal. Rule 16 provides for the procedure at hearing. Under Rule 17(1), where on the day fixed, or on any other day to which the hearing may be adjourned, the Appellant does not appear when the appeal is called on for hearing, the Court is empowered to make an order that the appeal is dismissed. Where the Appellant appears and the Respondent does not appear, the appeal can be heard ex-parte under sub-rule (2) of Rule 17. Order XLI, Rule 19 provides as follows :

"19. Re-admission of appeal dismissed for default.- Where an appeal is dismissed under Rule 11, sub-rule (2) or Rule 17, the Appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit."

7. Rule 19 empowers the Court to direct re-admission of an appeal where an appeal is dismissed under Rule 11(2) or under Rule 17. Rule 11(2) deals with a situation in which the Appellant does not appear when the appeal is called on for hearing on the day fixed or on any other day to which the hearing is adjourned. Rule 17 deals with a situation where on the day fixed for the hearing of the appeal or an adjourned day, the Appellant does not appear when the appeal is called on for hearing. Rule 11 applies to the stage of admission of the appeal, whereas, Rule 19 applies to the stage of the hearing of the appeal. In relation to the State of Maharashtra, there is an amendment to Rule 19 under which the power of the Court to re-admit an appeal is also extended to a situation where the appeal is dismissed under Rule 18(a) or Rule 18. Rule 18(a) envisages a situation where after the admission of an appeal, the Rules or the specific directions of the Court require the Appellant to take any steps in the prosecution of the appeal before a fixed date and where after due notice or intimation of the steps to be taken, the Appellant fails to take such steps in due time prescribed by the Rules or allowed by the Court. Rule 18, which was omitted with effect from 1 July 2002 by the Amending Act of 1999 dealt with the dismissal of an appeal where notice is not served as a failure of the Appellant to deposit costs.

8. Essentially, the outcome of this Motion, on the question of law addressed before the Court, would turn on the meaning of the expression "does not appear" when the appeal is called on for hearing in Order XLI, Rule 11(2). Order III, Rule 1 provides that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf.

9. The expression "appearance" is not defined in the Code. The expression has been used in several other contexts in the Code including in Order IX, Rule 8. Order IX, Rule 8 envisages a situation where the Defendant appears and the Plaintiff does not appear when the suit is called on for hearing in which event the Court is empowered to make an order that the suit be dismissed. Order V, Rule 1(2) requires that a Defendant to whom a summons has been issued may appear in person or "by a pleader duly instructed and able to answer all material questions relating to the suit; or by a pleader accompanied by some person able to answer all such questions".

10. The consistent view which has been taken by Courts across the country is that the expression "appearance", though not defined by the Code, when it is through a pleader, must be through a pleader who is duly instructed and is able to answer all material questions relating to the suit. A Division Bench of the Madras High Court in R.Namperumal Naidu Vs. Alwar Naidu AIR-1928-MAD-831 took the view that appearance for the purposes of Order IX does not constitute mere attendance of a pleader, but representation by a pleader who is able to answer material questions relating to the suit. The Court observed thus :

"The term 'appearance' is not defined in the Code. To constitute 'appearance' within the meaning of Order 9, C.P.C. by a pleader, I think, it must be shown that the pleader is duly instructed and able to answer all material questions relating to the suit ........ When the pleader asks for an adjournment which is refused and does not take any part in the trial, it being obvious that he cannot help his client as he knows nothing about the case, can it be said that the pleader is duly instructed and able to answer material questions put by the Court? To my mind the inference to be drawn from the circumstances is clear. The conduct of the vakil in not taking any part in the trial when his request for an adjournment is refused shows that he does not propose to appear in the case any further and that he disassociated himself from the case. In such circumstances it cannot be said that the pleader is duly instructed and able to answer all material questions put by the Court relating to the suit. ... ... ... The mere attendance of a pleader who is obviously unable to answer all material questions relating to the suit cannot be appearance on behalf of his client."

11. This view was reiterated in a judgment of a Full Bench of this court in Shidramappa Irappa Shivanagi Vs. Basalingappa Kushaoppa Kumbhar (1943) 45-BOMLR-697, where the Court has held as follows :-

"5. The general provisions about appearances of parties in Order III, Rule 1, are that a party can appear in person or by a recognized agent or by a pleader appearing, applying or acting on his behalf. These are made subject to any other express provision of law. Such an express provision is in Order V, Rule 1, where the mode of appearance by a defendant is stated to be either (a) in person, or (b) by a pleader duly instructed and able to answer all material questions relating to the suit, or (c) by a pleader accompanied by some person able to answer all such questions. The forms of summons given in forms Nos.1 and 2 of appx. B to the first schedule also contain the same instructions. Where, therefore, the defendant does not appear in person and there is none else to instruct his pleader, the only person through whom he can be said to appear is a pleader who must be duly instructed and able to answer all material questions. It follows, therefore, that if the pleader is present in Court on any day of hearing but has no instructions as to how to proceed with the case, there is no appearance of the defendant. Whether a pleader is duly instructed is a question of fact, but if he refused to take part in the trial on the ground that he has no instructions and then withdraws from the case either after, or without making, an application for adjournment, all further proceedings against the defendant become ex-parte. If the Court thereafter asks the plaintiff to lead evidence and then passes a decree in his favour, it must be regarded as an ex-parte decree. The defendant would then be at liberty to apply to set it aside under Order IX, Rule 13. If he proves to the Court's satisfaction that he was prevented by sufficient cause from appearing i.e. either personally or by a duly instructed pleader, it would be set aside on such terms as the Court thinks fit. ... ... ..."

In taking this view, the Division Bench of this Court reiterated the view of a Full Bench of the Calcutta High Court in Satish Chandra Mukerjee Vs. Ahara Prasad Mukerjee I.L.R. (1907)-CAL.-403 and another decision of that Court in Mariannissa Vs. Ramkalpa Gorain I.L.R.(1907)-CAL.-235. The Division Bench observed in paragraph 6 as follows :

"6. ... ... ... In the former case Mookerjee, J; one of the refering Judges, agreed with the decision of our Court in Soonderlal V. Goorprasad (1898)I.L.R.-23-BOM-414, that where there is a pleader physically present, who is not in a position to conduct the case, there is no representation of the defendant so as to give to the suit the character of a defended action. He further proceeded to observe that "the principle applies quite as much to a plaintiff as to a defendant, and when either party to a litigation is represented by a pleader, it is upon the assumption that the pleader is duly instructed and able to answer all material questions relating to the suit." That view was accepted by the full bench. It would apply not only to a pleader who has been engaged only for the purpose of asking an adjournment but also to the pleader who has been engaged from the beginning but who has not received instructions at any particular stage. In the latter case it has been held that when the pleader withdraws from the case on the ground that he had no instructions, the disposal of the suit is under Order XVII, Rule 2, and not under Order XVII, Rule 3." (emphasis supplied)

12. In a subsequent decision of a Division Bench of this Court in Fertilisers and Chemicals Travencore Ltd. Vs. Rajkumar Lines Limited (1970)72-BOMLR-271, the same view came to be reiterated in the following terms :

"4. Apart from that, we find that it is settled law that where parties are not personally present and are represented by pleaders, appearance by a pleader within the meaning of Order IX does not mean mere presence in Court. It means appearance by a pleader "duly instructed and able to answer all material questions relating to the suit" or by a pleader "accompanied by some person able to answer all such questions," as stated in order V, Rule 1. It is true that Order V, Rule 1(2)(a), (i) and (c) deal with appearance of defendants, but there is weighty authority in support of the proposition that the same rule would apply even with regard to the appearance by the plaintiffs. The words "appear" and "appearance" are used in several places in the Civil Procedure Code including Order III, Rule 1, Order V Rule 1, Order IX, Rules 1, 6, 8, 9 and 13 and Order XVII, Rule 2 and considering the scheme of these provisions, it is, in our opinion, clear that there cannot be any difference between the meaning of appearance by a pleader on behalf of the plaintiff and appearance by pleader on behalf of the defendant. The effective appearance by the pleader is possible only when he is duly instructed to answer all material questions or is accompanied by a person who is able to answer all material questions, whether the pleader is appearing for the plaintiffs or for the defendants. On principle, we find no reason whatsoever to make a distinction between the appearance of the pleader on behalf of the plaintiff and the appearance by a pleader on behalf of the defendants. That is why we find no such distinction being made in any of the cases decided by any Court."

13. Mr.Justice Jagannadha Rao (as His Lordship then was) took the same view as a Single Judge of the Andhra Pradesh in Rajana Venku Naidu Vs. Manugula Raja Naidu AIR-1984-AP-72.

14. A Single Judge of the Madras High Court has in taking the same view in P.Ganeshan Vs. UCO Bank represented by its Branch Manager, Namagiripet Branch and others (1999)98-Comp.Cas.-370 (MAD) adverted to a decision of a Division Bench of Madras High Court in Kaliappa Vs. Kumarasami AIR-1926-MAD-971, where it was held as follows :

"The real question for determination at issue is whether the appearance mentioned in Order 3, Rule 1 is merely a physical appearance, or whether it must be an appearance with the intention of pleading in a suit. It is argued for respondents that mere physical appearance is sufficient, but if this is so it would be an appearance if a party happened to be anywhere on the Court precincts with or without the knowledge of the Court. It is therefore rather difficult to accept the argument that mere personal appearance is sufficient. It is clearly, we think, intended that the appearance must be, not as a man, but as a party and with the intention of acting as such party in that suit. If this is correct, then the mere fact that the party was present in Court when his pleader reported no instructions would not amount to an appearance for he is merely there as the person who was represented by his pleader. The pleader acted on his behalf and when he ceased to do so, the party took no further part in the proceedings. The mere fact that he was in Court cannot make it an appearance in the suit. ... ..."

The learned Single Judge of Madras High Court has followed the view of Mr.Justice Krishna Iyer (as His Lordship then was as a Single Judge of the Kerala High Court) in Kuruvilla Chandy Vs. Hassar Bava Rawther 1969-K.L.T.-402 and a decision of the Allahabad High Court in Allah Bux Vs. Budha AIR-1939-ALL-451.

15. A Division Bench of this Court in Sonubai Baborao Gaikwad Vs. Shivajirao Krishnarao Gaikwad AIR-1921-BOMBAY-20 has held that the provisions of Order XLI, Rule 19 are not exhaustive of the powers of the Appellate Court to restore an appeal for hearing. In taking this view, the Division Bench relied on a judgment of the Privy Council in Raja Debi Bakhsh Singh Vs. Habib Shah 40-I.A.150. Shah, J. has held as follows :

"... ...As regards the first question, I am of opinion that the Court has such a power. The provisions of Rule 19 are not exhaustive on the point. Under that rule the Court is bound to re-admit the appeal if sufficient cause is wsown for the default, without any reference to the merits of the appeal. The inherent powers of the Court to discharge an order made for default depend upon somewhat different considerations. ... ..."

In a separate judgment, Crump, J. held as follows :

"But even if this rule is not applicable the case would be one in which the Court ought, I think, to interfere exdebito justitiae and the inherent powers of the Court under section 151 of the Code of Civil Procedure can very properly be applied to this case. The principles on which the Privy Council acted in Raja Debi Bakhsh Singh Vs. Habib Shah 40-I.A.-150 are applicable."

16. However, on behalf of the Respondent it was sought to be urged that the powers of an Appellate Court are distinct from those of a Trial Court in a suit. Reliance was sought to be placed on the provisions of Order XLI, Rule 11(4). Rule 11(4) stipulates that where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so. In our view, the provisions of Rule 11(4) do not define the ambit of the expression "does not appear" in Rule 11(2). The consistent view which has been taken by the Courts in the country is that appearance must mean, where a plaintiff or a defendant appears through an advocate; appearance through an advocate who is able to assist the Court by answering all material questions in the suit. We are of the view that the same meaning must be ascribed to the words used in the context of the power of the Appellate Court in Order XLI, Rule 11(2).

17. In the present case, as the record before the Court would indicate, the Motion Notice of Motion No.841 of 2009 for condonation of delay in filing the appeal was called out for hearing on 15 February 2010. The Motion sought condonation of a delay of 82 days in filing the appeal. The counsel appearing on behalf of the Appellant-Applicant stated that he had no instructions. It was in this background that the Motion was disposed of as not pressed and the appeal consequently was treated as being disposed of. Evidently, the Advocate who appeared on behalf of the Appellant, instructed by the attorneys who had entered appearance, had no instructions and was unable to make any effective submissions on behalf of the Appellant. The appearance for the purposes of Order XLI, Rule 11(2) must mean effective appearance and not merely an appearance by remaining physically present or in attendance before the Court. Consequently, it would have to be held that the Court when it proceeded to dismiss the Motion for condonation of delay, exercised powers under Order XLI Rule 11(2). Consequently, the appeal could be restored to file, if a case within the meaning of Rule 19 of Order XLI has been made out. The grounds which have been set up in the affidavit-in-reply of the Motion would establish sufficient cause for the restoration of the Motion for condonation. The Appellant had been represented by Mr.Vakil before the learned Trial Judge and by Mr.Udani, who was his junior. It was at their behest that, according to the Appellant, he had engaged the services of L.C.Tolat & Co. in appeal. As a matter of fact, the record would indicate that on 29 January 2010 it was Mr.Udani who had appeared on behalf of the Appellant instructed by L.C.Tolat & Co. though it has been stated that he was not working with that firm of solicitors. If the solicitors had no instructions from the Appellant, it would have been only appropriate and proper for them to apply for a discharge from the proceedings. That the solicitors did not do so but merely stated that they had no instructions, would not make any difference either to the powers of the Court or to the exercise of discretion in the present case. At the same time, any order for restoration of the Motion should, in the interest of justice, be made conditional on payment of costs quantified by the Court.

18. The Notice of Motion is accordingly made absolute in terms of prayers (a) and (b), subject to payment of costs quantified at Rs.20,000/- (Rs.Twenty thousand only), which shall be a condition precedent. The costs shall be paid within two weeks from today.

Ordered accordingly.