K. KUTTYA NADAR Vs. K. KUMARESWARAPERUMAL AND ORS.

JUDGEMENT

(1.) It appears that the appeal was in the list before the learned Subordinate Judge, Padmanabhapuram on 9th January, 1974. For want of time on that day, the appeal was adjourned to 30th January, 1974 for hearing finally. On that day, it is seen that the counsel for. the appellant reported no instructions. The appellant was also absent and the appeal was dismissed for default. An application for restoration had been filed on that day itself. It shows that there has been a bona fide mistaken impression in thinking that the appeal was not posted to 30th January, 1974 for hearing finally. In the supporting affidavit it has been stated that when the matter was adjourned on 9th January, 1974, the appellant thought that the appeal will not be taken up for hearing on 30th January, 1974. It is this claim that has been disbelieved by the Court below. For the purpose of conducting the appeal there is no need for appellants to be present and counsel on record appearing for the appellants will have to argue the case and in this case, it is seen that the counsel had reported 'no instruction'. In the affidavit filed in support of the application, no circumstances are stated as to what prompted the counsel to report 'no instruction' on that day. The affidavit of the counsel has not been filed. No correspondence that had passed between the appellant and his counsel was produced. Even now at this stage, no reasons are stated as to why his counsel reported "no instruction" in the appeal and whether it was an unauthorised act. Instead of producing the necessary materials and without even stating the true circumstances, for having allowed the appeal to be dismissed for default, straightaway reliance is placed on the following decisions as if they would form the grounds for enabling him to ask for setting aside the order of dismissal for default. They are Krishna Venkatesh Pal v/s. Devappa Avvu Naik and Ors. A.I.R. 1968 Mys. 188; Kotta Venkataraju Garu v/s. Maharaja of Pittapuram (1937) 1 M.L.J. 623 : 45 L.W. 717 : I.L.R. (1937) Mad. 607 : A.I.R. 1937 Mad. 503 and P.D. Shamdasani and Ors. v/s. Central Bank of India Ltd. : AIR 1938 Bom 199 .

(2.) In Krishna Venkatesh Pai's case A.I.R. 1968 Mys. 188, it has been held that when a counsel reports no instruction, it is the duty of the Court to find out whether the counsel had issued a notice to the party and only after being satisfied of the same, the Court should further proceed with the matter. I do not think that this is the line of approach which requires to be made by the Court at this stage, when a counsel deliberately reports that he has no instructions to proceed with the matter without having earlier intimated his client. If he acts in an irresponsible manner, he must be made to face the consequences. It is not the Court duty to toke into consideration the welfare or the interests of a counsel who chooses to function in that manner without regard to the interests of his client. When the petition filed for setting aside the order or judgment comes up for consideration and if the Court is informed with proof that the counsel had misconducted himself, then it may give relief to the party. But even then, it cannot bet just and proper to act upon a claim unless it be shown that the party had taken necessary action against the counsel, who had so misconducted himself, by initiating action either in the Bar Council or had initiated proceedings for claiming damages as against him. When a party does not do any of these things, he cannot be believed on a mere assertion that the counsel had reported no instructions without authority.

(3.) In this case on the same day, a petition has been filed and this by itself clearly shows that the appellant was also very much available in Court premises. It is evident that he had avoided himself to be present in Court hall at the moment when the matter was called and his advocate had reported 'no instructions'. In the affidavit filed in I.A. No. 57 of 1974 he does not even allege that his previous counsel had acted without authority and that he has taken action against him. He has not stated as to what necessitated his filing the application that day through another counsel. He has not stated as to how he was informed by his counsel on that day, if only he had not been in the vicinity of the Court. The fact that his counsel had reported 'no instruction' would not have been otherwise known to him immediately. All these things would lead only to the unassailable inference that the reporting of no instruction by his, counsel had been deliberate and appellant being quite aware that the follow -up proceedings for restoration would take a very long time as has, happened in this case, he had aimed at getting the proceedings protracted for a number of years.