Ex- parte Disposal of Civil Revisions: High Court Can Restore and Re-hear under the Code.

Saturday, April 18, 2009, 5:05 PM

Ill–legal though not illegal

Ex- parte Disposal of Civil Revisions: High Court Can Restore and Re-hear Under the Code.

 

Muhammad Shamsul Hoque

- Advocate, Appellate Division, Supreme Court of Bangladesh.

 

 

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 is 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 verdict of the high­est court of the country, are binding. Thus our venture here is to look 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 order/judgment 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 2 technical plea that the aggrieved party failed to approach die Court correctly relying on die supervisors power under section 115 of the Code of Civil Procedure not obliging the High Court Division to hear 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 party1. [Reference - 8 BLC 33].

Simultaneously in a more number of cases, the 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. [References: 30 DLR AD 30,74 (para - 8); 42 DLR AD 72; 49 DLR AD 130, 175; 4 BLC AD 68; 10 MLR AD 30; 1989 BLD AD 162; 1992 BLD AD 64; 1983 BLD AD 106, 193; 1984 BCR AD 532]

Now if the court is not legally obliged to hear the party, why would summary disposal be without juris­diction and unfair? If summary dis­posal is illegal, why should ex parte disposal 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 fail-to, avail the opportunity. Quick dis­posal of the above query may be that if the party does not take the given opportunity, tile 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, the 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, bona fide 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" and " prevented by sufficient cause from appearing". It may be appropriate that to ensure attendance of the learned Advocate for tile 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 remains 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 per cent 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 in fault, 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 appears to the court that though die 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 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 in as much 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 let 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 revisional 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 die 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 section 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 appear, 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 hot of the appellant which emphasized the pro­vision of rule 17(1) of Order 41 that when the appellant does not appear judgment cannot be passed on merit. If the appeal is dismissed for default as per 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 can not 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 fleeting from justice and that is why legisla­tive far-sightedness and wisdom is noticeable in Order 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. The 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 appears the suit 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.

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 provisions of sections 117 and 141; rule 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 harmonious 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 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 rule 8, 9 of Order IX and rule 19 of Order 41 of the Code as if the same was dis­missed for default. The Appellate Division having the power of doing complete justice can review its 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 exports in absence of the oppo­site party. There is no question with regard to the power and jurisdiction of the court. Now, is re-hearing of a civil revision permitted or not under the law, in an appropriate case? Literally in section 115 of the Code of Civil Procedure as it was 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 re­hear 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 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 BLD 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 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, the scope is limited where new ground on merit is required but in case of restoration and rehearing, the 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 by the amended law this requirement has also been withdrawn. Even in con­stitutional jurisdiction, a writ, being a proceeding of civil nature, the Appellate Division recognised the power of the High Court Division in 46 DLR AD 141, 56 DLR AD 41- the High Court is competent to take resort to the procedure either by review, re-consideration or re-exam­ining of its judgment and is also competent to exercise both its pro­cedural and substantive discretions, only on ground of justice equity arid 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 filing of the leave petition. In such a 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 review/re-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 ex parte 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 non-appear­ance, when satisfied, allowed re­hearing 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 in 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 non-appearance occurred due to missing the list or due to negligence of lawyer or his clerk, the re-hearing should have been allowed with appropriate cost because in such a 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 VIII of 2006 has made re­hearing of appeal a statutory right subject to payment of cost which, it is submitted, is applicable in revision also.

In summary disposal, aspersions are cast on the learned Judge while in ex parte disposal aspersions are 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 bona fide 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 re­hearing 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, the highest care should be taken to avoid ex parte disposal alike summary dis­posal, 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, disposal of civil revision in absence of the opposite party is ill-legal, though not illegal, against which the 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 troubles to conduct/con­test the case before the High Court Division but for 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, whatever exhaustive it might be, is obviously and absolute­ly against the basic sense of justice and scheme of law and procedures expressly provided, as 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.

[This Article was also published on March 18, 2008 in the Financial Express and is reproduced here with the permission of the Author].