1. This is an appeal by defendants 3, 4 and 5 against an order by the District Judge of South Malabar dismissing an application, I.A. No. 143 of 1950, to set aside an ex parte decree he passed in A.S. No. 281 of 1949 to restore the appeal to file and re-hear it.
2. The suit was one by the plaintiff who was an assignee from the 11th defendant of her rights in a Panaimkaichit, dated 15th February, 1929. He filed the suit for redemption and for recovery of possession. The District Munsif upheld the contention of the defendants that this document was essentially a lease and not a mortgage and that they were entitled to fixity of tenure, in other words, to occupancy rights. In the appeal the defendants had engaged Sri S. Nataraja Iyer who however reported no instructions on 15th March, 1950, the learned District Judge then disposed of the appeal ex parte reversing the finding of the District Munsif and holding that the suit document was a mortgage. He granted the plaintiff a decree for redemption and recovery of possession. On 25th March, 1950, the three defendants filed the I.A. under appeal accompanied by an affidavit by one of them that he came to Kozhikode on two or three occasions, that be was ill for a period of about three weeks suffering from chest pain and fever and could not respond to the communication from the advocate's clerk that the appeal was posted to hearing to 15th March, 1950. The learned District Judge held that this did not satisfactorily explain negligent conduct of the defence in the appeal. There was, of course, no obligation on the appellants to appear in Court themselves in person at the hearing of the appeal as they had engaged an advocate unless of course their personal appearance was directed by the Court itself. The circumstances under which a Court would be justified in hearing an appeal ex parte on the advocate for the respondents reporting no instructions are by no means easy to formulate, and I would hesitate to attempt to prescribe any hard and fast rule. Mr. Sundara Iyer contends that this case is governed by Order 41, Rule 21. which adopting the language of Order 9, Rule 13, in the case of suits lays down that where an appeal is heard ex parte and judgment pronounced against the respondent, he may apply to the appellate Court to re-hear the appeal and the Court shall do so if he satisfies it that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing. It is practically difficult to apply this provision of law to a case in which an advocate has been engaged to appear and has been presumably paid a fee for appearance.
3. When an advocate reports no instructions, it is very difficult to say precisely what he means. Instructions may vary in nature and generally have a direct connection with the fees paid to the advocate. The ordinary practice, I. believe, and the learned advocates do not dispute this, is that only half the fee is paid when the advocate is engaged for the purpose of the appeal and the balance of the fee is paid to him later. It may sometimes, and it probably does often, happen that appeals are filed by advocates on even a smaller original fee. It has also to be remembered that rural clients live in distant villages unserved by any responsible legal service and that there is a big gulf in distance between them and the urban lawyer often bridged by very uncertain and rusty communications.
4. In this case, the present appellants lost, no time in engaging another advocate Sri T.K. Lakshmana Iyer who filed I.A. No. 143 of 1950 under appeal on 25th March, 1950, that is, ten days after the appeal was disposed of. The best evidence in the matter of failure to appear through an advocate properly instructed on 15th March, 1950, the date on which this appeal was heard was the advocate Sri S. Nataraja Ayyar himself, or at any rate his clerk might have been examined to file the correspondence which passed between the advocate and client in connection with instructions and notification of the hearing date. The learned District Judge, however, in this case merely proceeded on the report of the learned advocate reporting no instructions. When an advocate makes a report to this effect, it can of course in the large majority of cases be presumed that the client had made no response to more than one call for the balance of his fees. In cases of this kind a final opportunity may well be afforded in the form of a Court direction to the advocate to send a registered letter to his defaulting client that he will report no instructions to the Court if he does not instruct him or himself attend Court on the adjourned date. It is not possible to lay down any hard and fast rule. I remember very rare occasions on which I have passed an order in appeal in such a case directing the personal appearance in Court of the respondent whose advocate reported no instructions with results satisfactory to both advocate and client. A human approach of this kind by Courts instead of disposing of appeals ex parte and applications to rehear them too strictly in accordance with the requirements of Order 41, Rule 21, which taken literally has no real relation to conditions which now exist, will do something to bridge the gulf between the urban lawyers and the village, which the Bench and the Bar should do their best to achieve.
5. In this case in view of the fact that the learned District Judge has set aside ex parte the decree passed by the trial Court after contest and in view of the prompt steps taken by the appellants to engage another advocate and file this application, I think this appeal and I.A. No. 143 of 1950 should be allowed. I think the learned District Judge would have exercised a proper discretion if he had allowed I.A. No. 143 of 1950 and given the present appellants a chance of being heard in support of the judgment in their favour in the trial Court. The appeal will be restored to file and given an expeditious disposal by the present District Judge. I impose no terms and direct costs of this appeal to abide the result and be provided for in the ultimate decree to be passed.