MALKIAT SINGH AND ANR.versusJOGINDER SINGH AND ORS.

                        MALKIAT SINGH AND ANR.                                      A
                                        v.
                       JOGINDER SINGH AND ORS.

                             DECEMBER 2, 1997

                 IDR. A.S. ANAND AND V.N. KHARE, JJ.)                               B

         Code of Civil Procedure, 1908 : Order 9 Rule 13.

        Ex-pwte decree-Setting aside of-Suit for damages filed by respon-
 dents (plaintiffs )-Suit contested by appellants (defendants )-Dwing heming        C
 Counsel for appellants pleaded no instmctions-On that day appellants were
 not present in Cowt-Witlwut issuing notice to appellants Tlial Cowt
 proceeded ex-pa1te and passed ex-parte decree against the appellants-Ap-
 plication filed by appellants jor setting aside ex- palte decree as soon as they
 came to know of it-Application dismissed by T1ial Cowt-Appeal dismissed
 by Dist1ict Judge-Revision dismissed by High Cowt in limine-Hence, ap-             D
 peal before this Cowt-Held: appellants were neither careless nor negligent in
 defending the suit-They cannot be said to be at fault and therefore should
 not suffe1~Ex-parte decree set aside.

      Tahil Ram Issardas Sadarangani & Ors. v. Ramchand Issardas                    E
 Sadarangani & Anr., [1993] Supp. 3 SCC 256, relied on.

         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 8474 of
 1997.

      From the Judgment and Order dated 13.12.96 of the Punjab &                    F
 Haryana High Court in C.R. No. 5145 of 1996.

         K.K. Mohan for the Appellants.

         Ujagar Singh and Ms. Naresh Bakshi for the Respondents.
                                                                                    G
         The following Judgment of the Court was delivered :

         Special leave granted.

_     The appellants were tried for the murder of one Harpal Singh and
 on conviction, were sentenced to suffer life imprisonment and to pay a fine H
                                     139
    140                  SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.

A of Rs. 1,000 by the learned Special Court, Ludhiana vide judgment dated
    1.4.1985. The respondents, it appears, on 16.8.89 filed a suit in the Court
    of learned Sub Judge, 1st Class, Samrala claiming damages from the
    appellants to the tune of Rs. 1,00,000 for deprivation of the income to the
    family members which they used to get from deceased Harpal Singh. The
B   claim in the suit was contested by the appellants. They filed their written
    statement and engaged a counsel to defend the suit. The trial court, on the
    basis of the pleadings of the parties, framed a number of issues. After two
    witnesses for the plaintiffs in that suit had been examined and cross
    examined, it transpires that, on 18.11.1991, learned counsel who had been
C   engaged by the appellants herein for defending them in the suit, pleaded
    "no instructions" before the court. As a result of the counsel pleading no
    instructions, the appellants were proceeded ex- paite. On 8.2.1992, the
    learned trial court passed an ex- pa1te decree against the appellants.

          The appellants went to enquire about the proceedings in the case
D from their counsel. Ou 6.6.1992, on their enquiry, their counsel informed
    them that he had pleaded "no instructions" as a result of which they were
    proceeded ex-palte and the suit had been decreed ex-pa1te on 8.2.1992. The
    appellants then engaged another counsel and on 10.6.1992, filed an applica-
    tion under Order 9, Rule 13, C.P.C. for setting aside the order dated
    18.11.1991 and the ex-palte judgment and decree dated 8.2.1992. While that
E   application was pending adjudication, the appeal filed by the appellants
    against their conviction and sentence was heard by this court. On 7.3.1995,
    the order of conviction and sentence was set aside.

          The trial court dismissed the application filed by the appellants
F under Order 9, Rule 13, C.P.C. on 22.1.1996. Their appeal failed before
    the learned District Judge on 18.10.1996. The High Court dismissed the
    civil revision petition filed by them in-limine on 13.12.1996. Hence this
    appeal by special leave.

          We have heard learned counsel for the parties in this appeal and
G perused the record.

        There is no denying the fact that the appellants had engaged a
  counsel to defend them in the civil suit. The counsel for the appellants
  pleaded "no instructions" but the court did not issue any notice to the
H appellants, who were admittedly not present on the date when their counsel
                MALKIAT SINGH v. JOGIND ER SINGH                         141

  reported no instructions in the court. It is nobody's case that the counsel A
  informed them after he had reported no instructions to the court. The
  appellants only come to know about the order dated 18.11.1991 and the ex-
. pane decree dated 8.2.1992 when they approached their counsel on
  6.6.1992. It was within four days thereafter that the appellants filed an
  application under Order 9, Rule 13, C.P.C. for setting aside the order dated B
  18.11.1991 and the decree dated 8.12.1992.

       The appellants in their application clearly pleaded that they were
neither careless nor negligent and as soon as they learnt about the ex-pa1te
decree dated 8.2.1992 and the order dated 18.11.1991, they filed the
application to set aside the order and ex-pa1te decree. A perusal of the       c
record also reveals that the appellants were neither careless nor negligent
in defending the suit. They had engaged a counsel and were following the
proceedings. 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 D
and proceeded in the case from the stage when the counsel reported no
instructions. The appellants cannot, in the facts and circumstances of the
case, be said to be at fault and they should not suffer. In taking this vi..:w,
we are fortified by a judgment of this Court in Tahil Ram Issardas
Sadaranga11i & Ors. v. Ramchand Issardas Sadarangani & Anr. (1993] Supp. E
3 sec 256, wherein the bench opined :-

         "It is not disputed in the present case that on March 15, 1974 when
         Mr. Adhia, advocate withdrew from the case, the petitioners were
         not present in court. There is nothing on the record to show as to F
         whether the petitioners had the notice of the hearing of the case
         on that day. We are of the view, when Mr. Adhia withdrew from
         the case, the interests of justice required, that a fresh notice for
         actual date hearing should have been sent to the parties. In any
         case in the facts and circumstances of this case we feel that the
         party in person was not at fault and as such should not be made G
         to suffer."

      In view of what we have said above, this appeal succeeds and is
allowed. The order of the trial court dated 18.11.1991 and the ex-pa1te
decree dated 8.2.1992 are set aside. We also set aside the order of the H
    142                   SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.

A   District Judge and that of the High Court dismissing the civil revision
    petition. The case is remanded to the trial court for its disposal in
    accordance with law. The trial court shall proceed with the case from the
    stage, where the case was on 18.11.1991. There shall be no order as to costs.

    T.N.A.                                                      Appeal allowed._
B