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Judgment
K. Lahiri, A.C.J.
This is an application, under Rule 36 of the Rules for the Administration of Justice and Police in Khasi and Jaintia Hills, 1937, as amended, for short "the Rules", directed against the judgment and order dated 10.7.1978 passed by Shri G.S. Choubey, Additional Deputy Commissioner, Khasi Hills, Shillong in Misc. Civil Appeal No. 6 (T) of 1976 allowing the appeal and setting aside the decree of the trial Court holding that it had no jurisdiction to try the suit with a direction to return the plaint to the Plaintiff for presentation to the appropriate Court.
The relevant compact facts leading upto the present petition may be summed up as follows:
The Petitioner-Plaintiff instituted a vide suit against the Defendants opposite parties. She also filed an application for permanent injunction under Order 39 Rule 1 of the Code of Civil Procedure. The trial Court printed ad-interim injunction against which the Defendants preferred an appeal and the appellate Court on admission of the appeal called for the records. However, on 30.5.1974, during the pendency of the said appeal the main suit came up for hearing. It appears clear that the learned lawyer for the Defendants instructed the Defendants that as the records of the suit had been called by the appellate Court in the appeal against the order of injunction the Defendants need not attend Court or that date. However, the suit was called for hearing, and, as the Defendants were absent an ex-parte decree was passed against the Defendants, who preferred an appeal for setting aside the ex-parte decree. It was registered as Misc. Civil Appeal No. 10(T) of 1974, Sri S. Phukan, Additional Deputy Commissioner, Khasi Hills, Shillong by his order dated 13.2.76 held that the Defendants ought to have first applied to the trial Court for setting aside the decree under Order 9 Rule 13 and, thereafter should have come up before the appellate Court in appeal. Learned Judge held that the appeal was incompetent and directed the Defendants to prefer an application under Order 9 Rule 13 to the trial Court. We fail to fathom the reasoning of the learned Judge. He had undoubted power to entertain the appeal against the ex-parte decree. He failed to exercise the jurisdiction vested in him by law and held that the appeal was premature and incompetent. If the application under Order 9 Rule 13 was allowed the question of preferring any appeal could not have arisen. On the other hand, on dismissal of the prayer for setting aside the ex-parte decree under Order 9 Rule 13 the appeal would have been against a distinct and separate order rejecting the prayer for setting aside the decree. However, we do not propose to and in fact cannot enter into the merits of the decision as it has become final. We say this much and no further that by virtue of the said order learned Judge caused great prejudice to both the parties. Learned Counsel for both parties submit that the appellate order was palpably illegal and the learned Judge should have disposed of the appeal on merits. In consequence of the erroneous order both the parties have suffered large expenses, wasted valuable time and energy, passed many anxious years. We recall a legal maxim "Actus curiae neminem gravabity", which rule has universal application. It means, that the act of the Court should not prejudice any one. It must be rectified. Indeed, the cardinal principle of administration or justice is that an erroneous act of, the Court should not prejudice any party. (Vide, Mulholland and Tedd v. Baker (1939) 3 All E.R. 253 (255). The principles are applicable to and followed in India. In Arun Chandra Das Mazumdar Vs. Wajid All and Another, this Court applied the principle. However, the appellate order has become final and as such it cannot be interferred with.
Thereafter, on 20.2.76 at directed by the appellate Court the Defendants filed an application under order 9 Rule 13 of "the Code". The trial Court rightly held that against an ex-parte decree the Petitioner could file an appeal or alternatively could have made an application under Order 9 Rule 13 of the Code. However, learned Assistant to the Deputy Commissioner misconceived the appellate order and treated it as an order of disposal of the appeal on merits, and, accordingly held that he had no jurisdiction to entertain the application under Order 9 Rule 13 after the appeal had been disposed of by the appellate Court.
The finding of the trial Court are erroneous on the ground that the appeal was never disposed on merit. The appellate Court had held that the appeal was premature and not competent as such. Secondly, the appellate Court had directed the Defendants to prefer an application under Order 9 Rule 13 of the Code, which was binding on the trial Court. As such, the order of the trial Court not to entertain the application was in defance of the order of the superior Court and illegal as such. When the appeal was not disposed on merit, the trial Court was bound to entertain the application under Order 9 Rule 13 and dispose the same. At any rate, the appellate Court directed the Defendant to file such an application to the trial Court. The said order of the appellate-Court was binding on it. Be that as it may the trial Court held that it bad no jurisdiction to entertain the application under Order 9 Rule 13 and rejected the petition on 13.12.1976. Against the said order refusing to entertain the application, the Defendants opposite parties preferred an appeal. The tragedy of errors was further compounded by the appellate Court. The appellate Court did not consider the legality or validity of the impugned order refusing to entertain the application under Order 9 Rule 13 but entered into the merits or the suit and hold that the trial Court had no jurisdiction to entertain the suit and render the ex-parte decree on ground of lack of territorial jurisdiction of the trial Court.
We have heard the learned Counsel for the parties at length. The common case of the parties is that the appellate Court had no jurisdiction to enter into the merits of the case when the appeal was preferred against the order of the trial Court refusing to entertain an application under Order 9 Rule 13 of the Code, that is for setting aside the ex-parte decree on the ground that the Defendants were prevented on sufficient cause from appearing in Court when the ex-parte decree had been passed. Acting on the submissions made by the learned Counsel for both the parties and on perusal of the record we find that the appellate Court totally erred in law in deciding the merit of the case and holding that the trial Court had no jurisdiction to try the action when the question was not raised by the parties nor any issue framed on the basis of the pleadings of the parties. The appellate Court had no jurisdiction to decide the question whether the trial Court had territorial jurisdiction or not in the absence of any plea taken by the parties questioning the jurisdiction of the Court. In fact the said stage never reached at the appeal stage. Further the Defendants applied for setting aside an ex-parte decree under Order 9 Rule 13 and the only controversy before the appellate Court was whether the trial Court was justified in not entertaining the application under Order 9 Rule 13 or not. No other question was raised nor could be raised by the Appellants. The appeal preferred by the Defendant-opposite parties was not directed against the ex-parte decree passed on 30.5.1974 but it was against the order dated 13.12.76 whereby the trial Court refused to entertain the application of the Defendants under Order 9 Rule 13, to set aside the ex-parte decree and to restore the suit to file. Under these circumstances we set aside the findings and orders of the appellate Court to the effect that the result was not maintainable and/or the decree was invalid. In the result, the contention of the learned Counsel fop the Petitioner is upheld.
Now, the question arises as to whether we should remit the matter to the appellate Court to bear and dispose of the appeal to decide the real controversy raised when we can conveniently dispose of the matter in this application under Rule cereniently dispose of the mattes in this application under Rule 36 of the Rules for the Administration of Justice and Police in Khasi and Jaintia Hills, 1937. The contour of power of this Court under Rule 36 of the Rules is very large and wide. For expeditions disposal of the controversy we invited the learned Counsel for the parties to raise their contention on the merits of the case, namely, whether the application under Order 9 Rule 13 should be allowed or not. Any remand would further delay disposal of the case. Learned Counsel for the parties have very rightly submitted that the question as to the merit of the application under Order 9 Rule 13 should be finally heard and disposed of at this end. Accordingly we proceed to dispose the same.
Upon hearing learned Counsel for both the parties we feel that it is very much easy and convenient for us to dispose of the application under Order 9 Rule 13 made by the opposite parties-Defendants as all the facts are before us. It is not disputed before us that on 30.5.74 the date on which the ex-parte decree was passed the Defendants failed to appears in Court and as such, the trial Court passed the ex-parte decree upon examination of one witness. It is apparent that the Defendants did not attend Court on 30.5.74. on the advice given by their lawyer that they were not required to appear on that date because the appellate Court had already called for the records. It appears that the learned lawyer might not have been justified in instructing the Defendants not to appear on that date. Learned Counsel for the Defendants ought to have advised the Defendants to appear on the date and to take appropriate steps. However, we are told at the bar that the learned lawyer on whose advice the Defendants did not appear in Court on 30.5.74 has since passed away. It is true that inappropriate advice was given by the learned lawyer. It may be said that the advice was reckless but the fact remains that acting on the said advice the Defendants did not appear and a fatal order of ex-parte decree was passed against them. However, the fact remains that the Defendants acted on the advice of their lawyer. In short, the Defendants had prayed for restoration of the suit under Order 9 Rule 13 on the ground that they defaulted in appearance on the date of hearing on the instructions received by them from their lawyer.
As such, the crucial question before us as well as the learned Counsel for both the parties is whether the Defendants should suffer for the fault of their lawyer. Learned Counsel for the Defendants categorically stilted that the Defendants should not suffer for the wrong advice given by their lawyer. Learned Counsel for the Appellant-Plaintiff faintly objected to the submission. We are of the firm opinion that a litigant should not suffer for the inaction, deliberate omission or misdemeanour of his lawyer. In India, under our present adversary legal system the parties always appear in Court through their advocates. In India, the obligation of the litigants is to choose his advocate, instruct him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be an (sic) or a rustic villager but they do not have knowledge of the Court procedure. The party remains supremely confident that his lawyer will look after his interest, They implicitly follow the instructions of their lawyers. If, during the proceedings the lawyer commits a mistake in giving wrong instruction to his (sic)elents, like the present one, should the litigant suffer? The litigants are not acquainted with the procedural law. In the instant case the Defendants never dreamt that they would so suffer in obeying the instructions of their lawyer. The question as to whether a party should suffer for the inaction, deliberate omission, negligence or misdemeanour of his lawyer, came up for consideration before the Supreme Court in Rafiq and Another Vs. Munshilal and Another, and, their Lordships answered the question thus:
The answer obviously is in the negative. May be that the learned Advocate absented himself deliberately or intentionally. We say nothing more on that aspect of the matter. We cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.
(Underscored by us)
Even deliberate and intentional act of the lawyer in absenting on the date of hearing was considered to be sufficient found for restoring the appeal for hearing. In Goswami Krishna Murarilal Sharma v. Dhan Prakash, (1981) 4 SCC 574 their lordships took the same view. In Smt. Lachi Tewari and Others Vs. Director of Land Records and Others, their Lordships took the (sic) Same view. Shortly put, the principle is that an innocent litigant should not suffer for the inaction, omission or misdemeanour of his lawyer. These decisions were relied in State of Assam Vs. Basanta Burman and Others, and it has been hold that no innocent litigant should suffer on account of the inaction of his lawyer.
We reach the conclusion, on perusal of the records of the case, that the Defendants did not attend Court on 30.5.74, when the ex-parte decree was passed, on the wrong and erroneous advice of their lawyer. As such for the wrong advice of the lawyer we should not permit the innocent litigant to suffer. We thus find sufficient cause for restoring the suit to file upon setting aside the ex-parte order dated 30.5.1974 passed by the Assistant to the Deputy Commissioner, Shillong. We are of the view that inter parte decision is always preferable. Ex-parte decision should be discouraged as far as possible. Under these circumstances, having hold that the Defendants had sufficient cause for not attending the Court on 30.5.1974 we set aside the ex-parte decree and remit the matter to the trial Court with direction to dispose of the suit as expeditiously as possible.
However, the Plaintiff-Petitioner has also suffered a lot. In fact both the parties have suffered due to various anomalous and quizzical orders rendered by the Courts below. The restoration of the suit to file is allowed subject to the condition that the Defendants do pay a sum of Rs. 501/- to the Petitioner.
In the result, for the reasons alluded, the impugned judgment and order of the appellate Court are set aside. However, the ex-parte decree dated 30.5.74 passed in Title Suit No. 40 (T) of 1973 is set aside and the suit is restored to file.
Send back the records forthwith to the trial Court for disposal of the suit expeditiously.