VASANTHI Vs. S NAGARAJAN

JUDGEMENT

(1.) I have heard the learned Advocates on both sides.

(2.) SRI Hiremath, learned Advocate who represents the petitioner, has submitted that there is a serious error apparent on the face of the record in so far as the learned trial Judge ought not to have exercised jurisdiction in this case because, as a principal Civil Judge, his jurisdiction was to entertain disputes where the monetary value was in excess of Rs. 50,000/ -. This position does not appear to be correct. The respondent's learned advocate points out to me that this was effectively a small causes suit and that the Judge concerned was assigned the work of hearing small causes suits and that was why the same was heard and disposed of by him. The Court was fully competent in these circumstances to exercise jurisdiction. The most substantial objection that is pleaded is that at one stage of the proceedings, the petitioner who was the defendant and who was not present in Court, was represented by her learned Advocate who asked for permission to withdraw from the proceedings. The submission was that the Court was obliged to have issued Court notice to the petitioner instead of having proceeded with the matter in the absence of the petitioner and her learned advocate. The real question is as to whether the Court was obliged to wait until the petitioner decided to engage another advocate or whether the learned Judge was justified in proceeding with the matter. Sri Hiremath submits that effectively, once the learned Advocate has withdrawn, the petitioner remains unrepresented, and in these circumstances, it is as good as an ex parts order which ought not to have been passed. The respondent's learned Advocate points out from the record that this is not the position because, the learned Advocate has participated in the proceedings for sometime and it was only at a later stage of the proceedings, that he applied for withdrawal.

(3.) IN the normal scheme of judicial proceedings, a party is given the opportunity of being represented through Counsel, but this presupposes the fact that the party must be in touch with the learned Advocate and give instructions to the Advocate. The position is not the reverse as is sometimes assumed by clients because, it is the primary duty and obligation of the litigant to find out about the progress of the matter, to remain present before the Court particularly once the trial commences, to respond to communications from the learned Advocate, to give timely instructions and to comply with all other requirements including the payment of the legal costs and fees from time to time. If instances arise where the litigant does not perform his or her obligations, the professional is left in a very difficult situation because, it is not possible particularly where a lawyer has to cross-examine, to proceed in the absence of instructions. Where a professional is placed in such a situation due to the default of the litigant, the lawyer will have no option except to point it out to the Court and to withdraw from the proceedings. It is the absolute discretion of the Court at that stage as to whether to proceed or to whether to stop the proceedings and issue fresh notice. To my mind, if it is at the preliminary stages when the case is not part heard, the procedure followed by the courts to issue fresh notice to the parties from the office is not an obligation, but it is an indulgence shown by the Courts out of consideration for the litigant. The law requires that notice is to be served on only one occasion and once that formality is completed, it is the obligation of the litigant to thereafter follow up the matter. If the litigant creates a dead lock due to negligence or non-cooperation, then the Court is under no obligation to once again issue notice to the litigant and hold up the litigation until further arrangements are made. When a case is part heard, the position becomes even more difficult because, considerable amount of judicial time has been spent on the proceeding and the Court has to take note of the fact that the opposite party is the sufferer if there is any stalling of the proceedings because of the default of the other party. It is in this background, to my mind, that the action taken by the learned trial Judge in this case will have to be upheld. Though the petitioner's learned Advocate has made a serious grievance of what has happened, to my mind the decision was perfectly justified and perfectly in order. It is in this background that his last request that the matter should be remanded for a de novo hearing will have to be rejected.