NARAYAN SHINDORE Vs. SAU SHANTILAL LAXMAN SHINDE

JUDGEMENT

(1.) THIS first appeal is at the instance of original defendant impugning the judgment and decree passed by the IIIrd Joint Civil Judge, Senior Division, Nasik on 19.10.98.

(2.) SOU. Shantabai Laxman Shinde (respondent herein and for short 'plaintiff' hereinafter) filed the suit against Shri Narayan Biraman Shindore (appellant herein and for short 'defendant') for specific performance of the contract. The plaintiff set up the case in the plaint that Survey No.22 admeasuring 2 acres located at Ganagpur, is owned by the defendant which is adjacent to survey No.30/2 owned by plaintiff. On 27.7077, the defendant agreed to sell the land comprised of Survey No.22 for a consideration of Rs. 34,000/-, at the rate of Rs. 17,000/- per acre to the plaintiff. The plaintiff paid a sum of Rs. 15,000/- in cash to the defendant towards part consideration of the agreement. According to the terms of the contract, the sale deed was to be got executed by the month of April, 1984 and the remaining consideration was required to be paid by plaintiff to defendant at the time of execution of sale deed. The plaintiff requested defendant on various occasions for execution and registration of sale deed but the defendant did not do the same and, therefore, plaintiff was constrained to issue notice to the defendant calling upon him to execute the sale deed and get it registered but that was not complied with necessitating the filing of the suit for specific performance of contract. The summons issued to the defendant by the trial court were served upon him and on 15.4.86. , the defendant put in his appearance through his advocate. The advocate for the defendant on that day prayed for time for filing written statement which was granted. Thereafter, on various occasions, time for filing written statement was sought for by the defendant's advocate which was granted but no written statement was filed and suit was ordered to proceed without written statement by order dated 19.6.87. The plaintiff was permitted to file affidavit in support of her claims. The plaintiff filed affidavit of her husband (Exhibit 21) and the trial Court on 19.10.88 decreed the plaintiff's suit.

(3.) THE glaring facts in Malkiat Singh's case as reflected from the report are the appellants before the Apex Court who were the defendants in the suit were convicts for the murder of one Harpal Singh and sentenced to suffer life imprisonment vide judgment of the criminal court dated 1.4.85, the plaintiffs who were respondents before the Apex Court, on 16.8.89 filed the suit for damages to the tune of Rs. 1 lac against the defendants, for declaration of the income of the family members which they used to get from deceased Harpal Singh; the defendants contested the claim and filed their written statement and engaged the counsel to defend the suit; the issues were framed on the basis of the pleadings of the parties and two witnesses were examined for and on behalf of the plaintiffs and the advocate for defendants cross-examined those witnesses, thereafter, on 18.11.91, the advocate for defendants pleaded no instructions and as a result thereof, the proceedings proceeded ex-parte against the defendants and on 8.1.92 an ex-parte decree was passed against the defendants by the trial court, on 6.6. 92 when the enquiry was made by the defendants, that advocate informed that he had pleaded no instructions as a result of which proceedings proceeded ex-parte against the defendants and ex-parte decree was passed on 8.2.92. THE defendants then engaged another advocate, made an application under Order 9. Rule 13 C. P. C. for setting aside the ex-parte order as well as ex-parte decree. THE said application for setting aside the ex-parte decree was dismissed by the trial court and maintained upto the High Court but was allowed by the Apex Court with the observations aforequoted. THE observations made by the Apex Court in paras 6 and 7 of the report were made in the context of the facts which I have already referred. It is clear therefrom that upon service of summons, the defendants filed written statement and engaged the advocate to defend them. THE advocate for the defendants was appearing throughout upto two witnesses were examined by the plaintiffs and then pleaded no instructions. THE defendants were lodged in jail undergoing life imprisonment. In these circumstances the Apex Court held '. . . . . in this fact situation, the trial court which had admittedly not issued any notice to the appellants after their counsel had reported no instructions, should have, in the interest of justice allowed that application and proceeded in the case from the stage when the counsel pleaded no instructions. . . . . . . '. THE facts and circumstances of the present case are entirely different. In the present case, after service of summons, the defendant put in appearance but did not file any written statement. THE advocate for defendant prayed for filing written statement 10 times which was granted liberally by the trial court and ultimately after giving 10 adjournments to the defendant for filing written statement, the court made it clear in its order dated 3.4. 87 that last chance was granted for filing written statement. Even that order was not complied with and no written statement was filed and on the next date, the advocate for defendant pleaded no instructions. THEse facts clearly reveal that the defendant was grossly negligent in conduct of the case and it appears that he had no defence to set up and therefore, did not file written statement. THE advocate can only file written statement on the basis of information given and facts supplied by the party. Despite seeking adjournments on more than ten occasions by defendant's advocate if defendant did not instruct the advocate, obviously he had no choice but to plead no instructions. THEre is no such rule, and at least I do not find any, that even if defendant does not choose to file written statement despite repeated adjournments sought by his advocate and granted by the court and then his advocate pleads no instructions, it is obligatory upon the court to give notice to the defendant before proceeding further in the suit. Malkiat Singh (supra) is not an authority for such proposition as canvassed by the learned counsel. In the circumstances, the trial court was not required to give any notice to the defendant when his counsel pleaded no instructions.