Case Note & Summary
The case involves a second appeal arising from a civil suit where the original defendant (now deceased, represented by legal heirs) was the appellant. The suit was for partition and separate possession of agricultural land. The defendant initially appeared in person and filed a written statement. Later, he engaged a lawyer who filed a Vakalatnama on 05.01.2007. However, the lawyer subsequently sought discharge on multiple occasions, citing lack of instructions from the defendant. The trial court did not issue any notice to the defendant after the lawyer's discharge and proceeded ex parte, ultimately decreeing the suit. The first appellate court confirmed the decree. In the second appeal, the appellants (legal heirs of the deceased defendant) argued that the trial court committed a procedural irregularity by not issuing notice to the defendant after his lawyer withdrew. The High Court admitted the appeal on the substantial question of law regarding the trial court's duty to issue notice. The court held that when a lawyer withdraws, the court must issue notice to the party to ensure they are aware of the proceedings. The failure to do so vitiates the ex parte decree. The court set aside the judgments of both lower courts and remanded the suit to the trial court for fresh disposal, directing the trial court to issue notice to the defendant and proceed afresh.
Headnote
A) Civil Procedure - Second Appeal - Substantial Question of Law - Section 100 Code of Civil Procedure, 1908 - The court considered whether the trial court's failure to issue notice to the defendant after his lawyer sought discharge constitutes a substantial question of law. Held that the trial court ought to have issued notice to the party when the lawyer withdrew, and proceeding ex parte without ensuring the party's knowledge is a procedural irregularity that affects the rights of the parties. (Paras 4-6) B) Civil Procedure - Ex Parte Decree - Duty of Court - Order 9 Rule 6 Code of Civil Procedure, 1908 - The court examined the trial court's duty when a defendant's lawyer withdraws. Held that the court must issue notice to the party to ensure they are aware of the proceedings; otherwise, the ex parte decree is liable to be set aside. (Paras 5-6)
Issue of Consideration
Whether the trial court committed a procedural irregularity by not issuing notice to the defendant after his lawyer sought discharge, and whether such irregularity gives rise to a substantial question of law under Section 100 of the Code of Civil Procedure, 1908.
Final Decision
The second appeal is allowed. The judgments and decrees of both the trial court and the first appellate court are set aside. The suit is remanded to the trial court for fresh disposal. The trial court is directed to issue notice to the defendant and proceed afresh in accordance with law. The parties are directed to appear before the trial court on 16.10.2023.
Law Points
- Duty of court to issue notice to party when lawyer withdraws
- Substantial question of law under Section 100 CPC
- Ex parte decree without proper notice is illegal
