30 April 2021

When counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter

Every litigant ought to be afforded an opportunity of deciding the issue involved on merits without the same being scuttled on mere technicalities



    In the said backdrop, if the decision in Smt. Garuda Sakuntala (supra), as relied upon by the learned advocate for the appellants - plaintiffs is taken into consideration, it held therein that, 'Past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non- appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed. The Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. The Court below ought to have considered whether there was sufficient cause for the absence of the appellant/plaintiff on 15.2.1993 only, and not the previous conduct of the appellant. Hence, the contention of the counsel for respondents, that in view of the previous conduct of the appellant in not attending the court the lower court is right in dismissing the suit for default, cannot be accepted'. It is further held that, 'Apart from that, admittedly, the appellant/plaintiff engaged an advocate to represent her case, and it appears that the said advocate did not make any representation on behalf of the appellant/plaintiff. When the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, no notice is issued to the appellant/plaintiff by the court below to that effect. On this ground also, the order under appeal is liable to be set aside'. The Court has observed that, 'Dismissal of a suit for default of the plaintiff shall always be resorted to by the courts with utmost circumspection. Before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. The procedural laws are intended to do substantial justice between the parties and not to penalize the parties'. Thus, as observed in the aforesaid decision, it is the
When counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter
duty of the Court to issue notice to the party concerned before proceeding further in the matter and before passing such default dismissal order, the Courts should keep in view the hardship that may be caused to the plaintiff in deserving cases, of course with exceptions depending on the fact-situation of a given case, because the dismissal of a suit for default of plaintiff operates as a bar for bringing a fresh suit on the same cause of action. In the case on hand also, the learned advocate representing the appellants - plaintiffs did not remain present as not keeping well and eventually, the suit came to be dismissed for default, however, no prior notice appears to have been issued to the appellants - plaintiffs.[Para No.6.2]

    Adverting to the facts of the present case, the learned trial Judge has dismissed the suit for default for want of prosecution and by way of impugned order, also dismissed the application for restoration of the said suit. It was the case of the appellants - plaintiffs that since the learned advocate representing the case of the appellants - plaintiffs before the trial Court was not keeping well, he did not remain present before the Court on the date so appointed, however, the learned trial Judge did not appreciate the said fact and considering the past conduct viz. non- appearance of appellants - plaintiffs dismissed the suit for default observing that the suit is aged 10 years. It is settled law as reflected in the decision in Smt. Garuda Sakuntala (supra) that past conduct of a party regarding default in appearance cannot be taken into consideration while deciding the question as to whether there was 'sufficient cause' for non-appearance of the party on a particular subsequent date i.e. the date on which the latest default is committed and the Court below is not justified in adverting to the previous conduct of the appellant/plaintiff while refusing to set aside the default dismissal order. Further, as held therein, when the counsel reports no instructions, it is the duty of the Court to issue notice to the party concerned before proceeding further in the matter. In this case, indisputably, the learned trial Judge has taken into consideration the past conduct of the appellants - plaintiffs while dismissing the suit for default and admittedly, no prior notice appears to have been issued to the appellants - plaintiffs by the learned Court below to that effect.[Para No.6.5]

29 April 2021

Cr.P.C. does not provide any provision for service of summons through Whatsapp

Going by Section 65 of Cr.P.C, if service could not be effected as provided under Section 62, the serving officer shall affix one of the duplicates of the summons to the conspicuous part of the house or homestead in which the person summoned ordinarily resides. Thereafter, the court should make such enquiries as it thinks fit and either declare the summons to have been duly served or order fresh service in such manner as it considers proper. As per Rule 7 of the Criminal Rules of Practice, Kerala, summons issued to the accused and witnesses shall ordinarily be signed by the Chief Ministerial Officer of the Court and the words “By order of the Court” shall invariably be prefixed to the signature of the Ministerial Officer. [Para No.3]


    The above provisions do not provide for service of summons through WhatsApp.

Cr.P.C. does not provide any provision for service of summons through Whatsapp
No doubt, the revolutionary changes in the field of communication calls for a more pragmatic approach regarding the mode and manner of service of summons. In this regard, it may be pertinent to note the insertion of Section 144 in the Negotiable Instruments Act (for short, 'the Act') for the purpose of overcoming the delay in serving summons on the accused in complaints under Section 138 of the Act. Section 144, providing for service of summons by speed post or by approved courier service, was inserted by Act 55 of 2002.[Para No.4]

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