The New Nation - Internet Edition

Muhammad Samsul Hoque

Advocate, Appellate Division

The Appellate Division declared, 'no right to be heard' and 'opportunity to be heard' simultaneously in civil revision. The first one permits apparently ex parte disposal and the later one prohibits summary disposal. The former based on literal and dictionary meaning of the words used in section 115 of the Code of Civil Procedure and the latter based on the sublime principles of natural justice. Both being verdicts of the highest court of the country are binding. Thus our venture for a sound and settled principle underlying therein in between the two apparently conflicting verdicts.

In some cases the Appellate Division held that power of the High Court Division under section 115 of the Code of Civil Procedure being supervisory it can suo moto revise the orderjudgment of the courts below and the court may not be obliged to hear the party/parties. This upright principle can be best regarded when the High Court Division interferes suo moto to remedy any legal wrong without any application or upon improper application by any party to the proceeding. In Indian jurisdiction originally this principle was expressed in the exigencies of justice to overrule a technical plea that the aggrieved party failed to approach the Court correctly relying on the supervisory power under section 115 of the Code of Civil Procedure not obliging the High Court Division to head the party. This principle perhaps received improper interpretation in our jurisdiction denying the right of an aggrieved party who took all the troubles to file an application before the High Court Division but for some inconveniences the learned Advocate failed to appear when the matter was taken up for hearing : "When the petitioner failed to appear the High Court Division can dispose of civil revision on merit and it may not be obliged to hear the party"-8 BLC 33.

Simultaneously, in a number of cases Appellate Division held that without providing opportunity of being heard, summary disposal of civil revision is without jurisdiction and unfair and, though section 115 does not literally warrant, notice must be issued on the other side complying with the principles of natural justice and this indicates that the opposite party should be heard --30 DLR AD 30,74 (para- 8); ---42 DLR AD 72;----49 DLR AD 130,175;---4 BLC AD 68;-10 MLR AD 301;-1989 I3LD AD 162; -1992 I3LD AD 64;-1983 BLD AD 106, /93 ;-1984 BCR AD 532

Now, if the court is not legally obliged to hear the party, why summary disposal would be without jurisdiction and unfair? If summary disposal is illegal, why ex parte disposal should not be ill-legal?

In summary disposal notice on the other side is not issued and the party is directly deprived of the opportunity of being heard. In ex parte disposal notice is issued and opportunity of being heard is provided but the party does not, or fails to, avail the opportunity. Quick disposal of the above query may be that if the party does not take the given opportunity the court need not wait for him as there is no legal bar to dispose of the civil revision ex parte. But the court sitting for administering justice must pause for a moment and think whether such quick disposal would advance the cause of justice. If the party did not willingly take the opportunity given or most negligently failed to take the opportunity court would be justified to proceed to dispose of the case as the court cannot be the victim of dilatory tactics adopted by a wicked party. But there may be genuine cause, bonafide reasons, for which a party or his lawyer may fail to appear when the case is called on for hearing. Party or his lawyer may not always willingly refrain from appearing at the time of hearing. Court must consider distinction between "intentionally refrained from appearing" & "prevented by sufficient cause from appearing". It may be appropriate that to ensure attendance of the learned Advocate for the other side exemplary penalty cost be awarded against the concerned in appropriate cases before the court should proceed for ex parte disposal.

Because after issuance of Rule a civil revision remain pending in the High Court Division for years together which may be 3.5,7,10,12 or more years beyond the date for hearing mentioned in the notice. There is provision in the High Court Rules that before a case is mentioned for fixing a date of hearing the other side must be informed by the attempting lawyer. There is practice of prior fixation of a case before it is taken up for disposal. If these provisions and practice are not observed it cannot be said that the affected party willingly avoided the given opportunity of being heard. In the present days the daily cause list of the High Court Division is voluminous and it is growing to reach 400 pages increasing the risk of missing the case on the list by the clerk of the learned Advocate. Searching with the help of computer recently invented by Siddique Enterprise is not yet 100% reliable. Sometimes the Advocate concerned for many genuine reasons may fail to appear when the matter is taken up for hearing. Further, an Advocate may be at fault.

(To be continued)

It is a settled principle that a party should not suffer for fault of his lawyer vide 17 DLR SC 487; 1998 BLT AD 119. Thus a judicial duty is cast upon the court to apply mind to the relevant aspects before proceeding for ex parte disposal of a civil revision. Unless it is satisfactorily appear to the court that though the provision and practice prior to disposal of a civil revision have been duly observed the party or his Advocate is willingly adopting a dilatory tactics the court should not proceed to ex parte disposal. Ex parte disposal can no way be considered better than summary disposal. As summary disposal of a civil revision is deprecated, by the Appellate Division ex parte disposal should be equally deprecated inasmuch as the underlying principle is same and in both situations the party is deprived of the opportunity of being heard.

Advocate is an officer of the Court who may be subject to disciplinary action but for his fault a litigant should not be left to suffer as no person should suffer for fault of the Court.

Even in criminal jurisdiction although hearing the party or his pleader is optional with the court exercising provisional powers as per express provision of section 440 of the Code of Criminal Procedure and the High Court Division is empowered to exercise any of the powers conferred on a Court of Appeal by sections 423,426, 427 and 428 or on a Court by section 338 and to enhance the sentence notwithstanding under sub-section (2) of section 439 it cannot make any order to the prejudice of the accused unless he has had an opportunity of being heard.

As decided by the Apex Court opportunity to appear before the court must be given and in this principle right to be heard is implied inherent. As found in 21 DLR SC 456 and 33 DLR HCD 168 by virtue of Sections 117 and 141 of the Code of Civil Procedure a civil proceeding in the High Court Division is also governed by the provisions of the Code other than the provisions which are specially excepted.

In this connection it may be mentioned that in Order 41, rule 17 (1) it is provided that if the appellant does not appear when the appeal is called on for hearing the court may make an order that the appeal be dismissed (that is dismissed for default) and in rule 17(2) it is provided that when the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. Under rule 21 of Order 41 re-hearing of the appeal has been provided upon application of the respondent and not of the appellant which emphasised the provision of rule 17(1) of Order 41 that when the appellant does m appear judgment cannot be passed on merit. If the appeal is dismissed for default as rule 17(1) the same may be restored that is why no provision has been made for the appellant to have the appeal re-heard. It cannot be the legislative intent that in case of judgment passed on merit the respondent only will get chance to ventilate his grievance before the same court and the appellant will not get similar chance for the similar default of non-appearance. The party who sought justice may not be intentionally fleeing from justice and that is why legislative far-sightedness and wisdom is noticeable in Orders XIL, , rule 17(1) not to dispose of the appeal on merit in absence of the appellant. Rule 11 (2), 15A, 18 of Order 41 provide for dismissal of the appeal for failure of the appellant and provision for re-admission of appeal has been made in rule 19 of Order 41 upon satisfaction of the court. Under amended rule 19A provision for direct re-admission of appeal has been made. Same is the provision under rule 8, 9 of Order IX when the plaintiff does not appear and the defendant appears the suit can be dismissed for default and the same may be restored upon application. When both parties do not appear the sui! can be dismissed for default. Now if this principle is applied in revision when the petitioner does not appear a civil revision may be dismissed for default and the same cannot be disposed of on merit ex parte.

Most probably in view of these provisions coupled with the principle as to right of being heard late legal luminary Babu S.R. Paul submitted that the High Court Division was wrong in disposing of the revision case on merit in the absence of the learned Advocate for the petitioners. If this legal interpretation is taken to be correct, it is humbly submitted, the decision reported in 49 DLR AD 151 needs to be reviewed as being decision per incuriam having not taken into consideration the provisions of sections 117 and 141; rules 8,9 of Order IX ; rule 17(1) of Order 41 of the Code of Civil Procedure. In that case while civil revision was disposed of on merit in absence of the learned Advocate for the petitioner the application filed in the High Court Division for review was misconceived. However, justice could not be denied for that and fairly the application could be construed as one covered by law that is an application for restoration of civil revision upon setting aside ex parte judgment treating the same as was dismissed for default applying the hannonious provisions of the Code as mentioned above.

It is worth mentioning that the principle has got a universal appeal that an aggrieved person seeking the door of justice must enjoy sufficient opportunity of being heard and that is why the legislature in the latest amendment of the Code of Civil Procedure vide Act VIII of 2006 made provision by inserting rule 9A in Order IX empowering the court to directly set aside the dismissal without requiring the plaintiff to adduce evidence to satisfy it about sufficient causes as required under rule 9. Similar amendment has been brought by inserting rule 19A in Order 41 empowering the court to directly re-admit the appeal. These provisions unambiguously reveal that for non appearance of the plaintiff, appellant, petitioner in the respective stage of a civil proceeding the suit, appeal or revision can be dismissed for default and the same cannot be disposed of on merit. Thus, in my view, when a civil revision is disposed of on merit in absence of the petitioner, correct procedure would be, the exparte judgment being against the warrant of law should be set aside upon application of the petitioner and the civil revision should be restored applying the principle of rules 8,9 of Order IX and rule 19 of Order 41 of the Code as if the same was dismissed for default. Appellate Division having the power of doing complete justice can review it's judgment suo moto.

When the given opportunity is not availed of by the opposite party the court can cautiously proceed to dispose of civil revision on merit--there is no legal bar. High Court is competent to dispose of civil revision ex parte/There is no question with regard to the power and jurisdiction of the court. Now, if in an appropriate case re-hearing of a civil revision is permitted or not under the law? Literally, in section 115 of the Code of Civil Procedure, as it is earlier mentioned, right to be heard or opportunity of being heard is not there and similarly, re-hearing of a civil revision is apparently foreign to the language of the section. But the highest courts of this subcontinent decreed that in appropriate cases re-hearing of a civil revision should be allowed applying the principle of Order 41, rule 21 of the Code of Civil Procedure. However the said rule relates to appeal and apparently does not include civil revision vide AIR 1983 SC 318 para -2 ; 53 DLR AD 87. When the defaulting party by filing an application satisfies the Court (under the old law) that for certain unavoidable reasons beyond control he could not, or he failed to, contact his lawyer or his learned Advocate failed to appear when the matter was taken up for hearing and if the explanation seems to be satisfactory the Court is similarly competent to consider the application for re-hearing. Here also the court is not without jurisdiction to allow the application for re-hearing of a civil revision. In Act VIII of 2006 by inserting rule 21A in Order 41 of the Code of Civil Procedure the law makers empowered the Court to directly re-hear the appeal without requiring the respondent to adduce evidence to satisfy it as to sufficient causes which prevented him from appearing when the appeal was called on for hearing. This indicates legislative intent to recognise right to be heard and thus to provide better opportunity even to a defaulting party unconditionally subject only to payment of cost. And this principle of re-hearing as provided in rule 21, 21A of Order 41 should be applied when the civil revision was disposed of on merit in absence of the opposite party. Closer scrutiny will reveal that provisions of the Code in this regard are harmonious and the same principle should be applied in suit, appeal, revision at all stages of a civil proceeding according to section 141 of the Code of Civil Procedure in absence of any specific provision to the contrary.

The court may award an amount of cost as per law in favour of the other side as that is going to be vexed twice but that cannot be allowed to triumph by any technical plea that once the civil revision is disposed of on merit the High Court Division has become functus officio and lost jurisdiction to re-open the same. Such plea cannot be accepted in case of any ex parte judgment/decree in view of the principle of Order IX, rule 13(1) of the Code of Civil Procedure where the same court can set aside its own decree.

It is a misconception of law and procedure that once a civil revision is disposed of on merit the aggrieved party has only remedy before the Appellate Division to file a leave petition. There may be points not touched in the ex parte judgment which the Appellate Division may not permit to raise as being not asserted before the High Court Division (vide 17 IILD AD 141). Thus legally and most reasonably in appropriate cases the High Court Division can re-hear the civil revision applying the principle of Order 41, rule 21 ; can set aside the ex parte judgment/decree passed by it applying the principle of Order IX, rule 13 and also can review the earlier judgment as per Order 47, rule 1 read with section 114 of the Code of Civil Procedure. In case of review, however, scope is limited where new ground on merit is required but in case of restoration and rehearing requirement is to satisfy the court that the defaulting party was prevented by sufficient cause from appearing when the matter was called on for hearing while under the amended law this requirement has also been withdrawn. Even in constitutional jurisdiction, writ being a proceedings of civil nature, Appellate Division recognised the power of the High Court Division in 46 DLR AD 141, 56 DLR AD 41 :-High Court is competent to take resort to the procedure either by review, re-consideration or re-examining of its judgment and competent to exercise both it's procedural and substantive discretions only on ground of justice, equity and good conscience.

Even filing of a leave petition before the Appellate Division itself is no bar to dispose of an application for re-hearing under the principle of Order 41, rule 21 or an application for review under Order 47, rule 1 of the Code filed before the High Court Division prior to the riling of the leave petition . In such situation the competency of the application for re-hearing or review before the High Court Division cannot be questioned. If, at all, competency of the leave petition may be questioned because of the pendency of application before the High Court Division over the selfsame judgment. The very day on which the application for re-hearing is allowed and the ex parte judgment of the High Court Division is set aside the leave petition would be infructuous. In a number of cases the Supreme Court of India held that until leave is granted and appeal is registered the jurisdiction of the High Court to consider the application for reviewre-hearing is not extinguished. Review or re-hearing by the High Court Division is within the warrant of law and thus mere filing of a Leave Petition in the Appellate Division cannot ipso facto bar the jurisdiction of the High Court Division vide AIR 1975 Orissa 64 para -10 sub para -3; AIR 1964 SC 1372 para-8,9.

In our jurisdiction there are instances that when a civil revision was disposed of exparte on merit for non-appearance of the learned Advocate of the affected party the High Court Division upon application for re-hearing considering the explanation given for nonappearance when satisfied allowed re-hearing and when not satisfied refused re-hearing under the old law and the Appellate Division did not interfere over such discretion judicially exercised by the High Court Division. No doubt, under the old law if the court was not satisfied on the explanation given for non appearance it could refuse re-hearing however it would have been more justified to allow re-hearing with exemplary cost, according to the circumstances of each case, to be paid by the person at fault. But if the non-appearance occurred due to non-compliance of provision and practice of prior intimation and prior fixation of a case re-hearing ought to have been allowed. If nonappearance occurred due to missing in bthe list or due to negligence of lawyer or his clerk re-hearing should have been allowed with appropriate cost because in such situation refusal of re-hearing would let the client to suffer which is against the settled principle that a client should not suffer for no fault of his own. Now since the legislature, having exercised wisdom brought amendment by Act Vlll of 2006, has made re-hearing of appeal a statutory right subject to payment of cost which, it is submitted, is applicable in revision also.

In summary disposal aspersions cast on the learned Judge while in ex parte disposal aspersions cast on both--- the learned Judge and the learned Advocate. Advocate, who is an officer of the court, is answerable to his client although there may be bonafide cause, genuine difficulty for his non-appearance. When the court is satisfied on the explanation given, subject to cost, a re-hearing should never be denied. That is why when judgment passed by the High Court Division upon application for re-hearing either allowing or refusing re-hearing on the basis of the explanation given the Appellate Division did not interfere so far to my knowledge. Under the new law explanation even is not required.

In these days of frustration when nobody can be trusted, highest care should be taken to avoid ex parte disposal alike summary disposal. Ex parte disposal of civil revision in absence of the petitioner is obviously illegal being against the warrant of law and the principle under the Code provides remedy by way of restoration of the civil revision as if the same was dismissed for default. Ex parte disposal of civil revision in absence of the opposite party is ill-legal though not illegal against which principle under the Code as illustrated above provides remedy by way of re-hearing. The situation when in the exercise of supervisory powers the High Court Division suo moto rectifies any error of law is sharply different from the situation when the affected party took all the trouble to conduct/contest the ease before the High Court Division but for fault of the lawyer or for some other reasons could not appear when the matter was taken up for hearing. Ex parte disposal of a civil revision on merit, in the latter situation, however exhaustive it might be, is obviously and absolutely against the basic sense of justice and scheme of law and procedures expressly provided in the Code of Civil Procedure elaborated above.

To address such wrong with a legal remedial measure it is expressed with high confidence and absolute certainty that without prejudice to the supervisory powers and authority to act suo moto in an appropriate case to advance the cause of justice the High Court Division is overwhelmingly competent to set aside its earlier judgment passed ex parte and re-hear! restore for hearing on merit a civil revision allowing thereby opportunity to the party aggrieved by the ex parte judgment however, with some cost as the Hon'ble Court may think appropriate.

The Court should keep aware that its duty is to remove ambiguity of the legislations, if any, by upright interpretation advancing the cause of justice and not to create ambiguity and discriminations by adopting courses beyond the line prescribed by the Legislature and thereby frustrating the rights of the people seeking justice.

Summary:

(i)When petitioner/his Advocate does not appear civil revision can be dismissed for default and cannot be disposed of on merit. And upon application (based on satisfactory ground under the old law while under the new law no ground is required) dismissal can be set aside and the civil revision can be restored for disposal on merit subject to cost.

(ii) When opposite party/bis Advocate does not appear civil revision can be disposed of on merit and upon application (based on satisfactory ground under the old law while under the new law no ground is required) ex parte judgment can be set aside and the civil revision can be restored for re-hearing on merit subject to cost.

(iii) Harmonious application of the Call stages of a civil proceeding should be the practice subject to specific provision, if any, to the contrary.

(iv) For fault of the lawyer alternative measure by way of cost may be appropriate but client should not be let to suffer is a settled settled principle.

(v) High Court Division competent to dispose of application for restoration, re-hearing, review filed earlier notwithstanding pendency of Leave Petition before the Appellate Division filed later.