S DEEPAK Vs. GEORGE PHILIP

JUDGEMENT

(1.) What is the procedure or course of action a court should adopt when the counsel reports no instructions Is the court invariably bound to issue fresh notice to litigants before proceeding with the case further Whether the observations in Jayalakshmi v. Avara 2003 (2) KLT 901 lays down an inflexible rule that whenever counsel reports 'no instructions', the court should issue a registered notice to that party A learned single Judge of this Court (Mr. R. Basant, J.) referred this case to the Division Bench for clarification of the above issues. Before dealing with the question, we shall briefly refer to the facts of this case.

(2.) A suit was filed by the first respondent herein against one Sasidharan Nair. The defendant Sasidharan Nair filed written statement on 22-8-1997. The suit is one for recovery of money on the strength of a dishonoured cheque, allegedly issued by the original defendant, Sasidharan Nair. It is seen that, prior to the institution of the suit, a lawyer notice was sent, which was received by the defendant, but, not replied. In the suit, the defendant admitted the signature, but disputed the execution. According to him, he had availed a loan of Rs. 10,000/- alone for meeting his medical expenses. He further stated that the amounts were paid in part by him. After framing issues, the above suit was listed for trial to 9-2-1998. On a petition filed by the defendant, it was removed from the list. Thereafter, there were several postings. Again, the case came up for trial in the list on 14-9-1998 and the defendant got an adjournment stating that the matter will be settled by him. The case was adjourned to 18.9.1998 for filing compromise. Thereafter, it was adjourned to 25-9-1998 and again to 28.9.1998. On 28.9.1998, counsel appearing for the defendant reported no instructions and the defendant was set ex parte as he was not present. Thereafter, an ex parte decree was passed on 29-9-1998. The defendant did not file any petition to set aside the ex parte decree. After about four months, the defendant died on 22-1-1999. Thereafter, wife of the defendant, late Sasidharan Nair and two children filed an application for setting aside the ex parte decree along with a petition to condone the delay on 20-7-1999 and those petitions were returned as impleading petition was not filed. Thereafter, impleading petition was filed to implead the legal heirs as additional defendants and the petitions were re-presented. Those applications were dismissed as defendant died only on 22-1-1999 and he had sufficient time to file a petition to set aside the ex parte decree during his life time. It also found that no valid reasons were stated to condone the delay in setting aside the ex parte decree. In the above petition for setting aside the ex parte decree filed by the wife and two children of the defendant, writ petitioner was arrayed as second respondent. It is stated that since he was residing at Bombay, he did not join the earlier petitions. However, notice was issued and he was aware of the proceedings. After dismissal of the above petition filed by the wife and two children of the defendant to set aside the ex parte decree by Ext.P1 order dated 26-10-1999, writ petitioner filed an appeal against the above said order. The defendant's wife and other children who approached the court for setting aside the ex parte order did not challenge the order dismissing the petition. The Civil Miscellaneous Appeal was filed against Ext.P1 order by the petitioner who was one of the sons of the late defendants and who was respondent in Ext.P1 proceedings with a delay condonation petition after a long period of one year and four months. Appeal was filed by the petitioner on a certified copy of the order obtained by the counsel for the respondent 2 to 4 in the appeal. (His mother, brother and daughter who applied for setting aside the ex parte decree).

(3.) By Ext.P2 judgment dated 5-9-2005 appeal filed by the petitioner was dismissed. The appellate court observed as follows: