Sunday, 22 May 2016

Whether litigant can disown his advocate at any time and seek relief from court?

The   advocate   is   the   agent   of   the   party.   His   acts   and
statements, made within the limits of authority given to him,
are the acts and statements of the principal i.e. the party who
engaged him. It is true that in certain situations, the Court
may, in the interest of justice, set a side a dismissal order
or   an   ex­parte   decree   notwithstanding   the   negligence
and/or misdemeanour of the advocate where it finds that
the client was an innocent litigant but there is not such
absolute rule that a party can disown its advocate at any
time and seek relief. No such absolute immunity can be
recognised.   Such   an   absolute   rule   would   make   the
working   of   the   system   extremely   difficult.   The
observations made in 'Rafiq' must be understood in  the
facts   and   circumstances   of   that   case   and   cannot   be
understood   as   an   absolute   proposition.   As   we   have
mentioned hereinabove, this was an on­going suit posted
for   final   hearing   after   a   lapse   of   seven   years   of   its
institution. It was not a second appeal filed by a villager
residing away from the city, where the Court is located.
The defendant is also not a rustic ignorant villager but a
private limited company with its head­ office at Calcutta
itself and managed by educated businessmen who know
where   their   interest   lies.  It   is   evident   that   when   their
applications were not disposed of before taking up the suit
for final hewing they felt piqued and refused to appear before
the court. May be, it was part of  their delaying tactics as
alleged by the plaintiff. May be not. But one thing is clear
they   'chose   to   non­cooperate   with   the   court.   Having
adopted such a stand towards the Court, the defendant
has   no   right   to   ask   its   indulgence.   Putting   the   entire
blame upon the advocate and trying to make it out as if
they were totally unaware of the nature or significance of
the proceedings is a theory which cannot be accepted and

ought not to have been accepted. 
IN THE HIGH COURT OF JUDICATURE AT MUMBAI
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5343 OF 2015
Mehendara P.Shah … Petitioner
Vs.
Gurupreet Kamaljeet and others … Respondents

        CORAM  : R. G. KETKAR, J.
DATE       :  25th JUNE, 2015
Citation;2016(3) ALLMR142


 Heard Mr.D.H.Mehta, learned Counsel for the petitioner
and Mr.Rahul Kedar,  learned Counsel for the respondents No. 2 to 4,
6 to 10 at length.
2. By this petition under Article 227 of the Constitution of
India, original defendant No.12 has challenged the judgment and
order  dated 27/03/2015 passed by the  learned Judge, City Civil
Court for Greater Bombay in Notice of Motion No. 880 of 2015 in
L.C. Suit No. 6832 of 2005 (High Court Suit No. 2319 of 2005).  By
that order, the learned trial Judge dismissed the Motion taken out by
the   petitioner,   hereinafter   referred   to   as   defendant   No.12   for
condoning the delay of 2200 days in filing the Motion as also for
setting aside ex­parte order dated 17/02/2009 passed in the above

suit.  
3. In   support   of   this   petition,   Mr.Mehta   strenuously
submitted that suit was instituted initially on the Original Side of this
Court on 30/08/2005.   On 06/09/2005, this Court passed order
restraining the defendants from using in any manner open space of
the building for any religious activities and/or from obstructing the
ingress   and   egress   of   the   flat   purchasers   from   their   respective
premises in the open space of the building.  The suit was transferred
to   the   City   Civil   Court   on   01/10/2012.     In   the   meantime,   on
17/02/2009, the Prothonotary and Senior Master passed order to the
effect that no written statement is filed by defendants No. 1 to 18
and suit as against defendants No. 1 to 18 was transferred to the list
of undefended Suits.   He invited my attention to the affidavit in
support   of   Motion   filed   by   defendant   No.12   and   in   particular
paragraph 2 thereof.   In paragraph 2, it is asserted that defendant
No.1 is a trust and defendants No. 2 to 18 are trustees of defendant
No.1, trust.  Initially, defendant No.12 was looking after the suit but
due   to   age,   he   could   not   continuously   follow   up   the   matter.
Defendant No.14­ Nayan Shah was looking after the suit and other
trustees were not aware about the stages of the suit.   Defendant
No.14 expired on 11/12/2010.  He was the only person having all
the details and documents related to the matter.  Defendant No.12
and other trustees were totally unaware about the progress of the

matter.     Defendant   No.12   is   suffering   from   diabetes   and   blood
pressure.    All relevant papers were with defendant No.14 and the
said papers were not traceable.   Because of that, defendant No.12
could not contact advocate to draft the written statement and also
could not give instructions in the matter.  It is only on 22/02/2015,
defendant No.12 received letter from their advocate for discharging
his vakalatnama.     He was instructed to come to advocate's office.
Since he was not keeping well, he could not meet his advocate in
time.   There was miscommunication  between their  advocate  and
defendants,   due   to   which,   advocate   representing   them   filed
discharge application.   Defendant No.12 thereafter personally went
to advocate's office on 26/02/2015 to give instructions in the matter,
but as their advocate was in the Apex Court, Motion could not be
filed on 26/02/2015.  However, he came to know from his advocate
that   matter   is   finally   argued   by   the   plaintiff   and   was   kept   for
judgment.   It is in these circumstances, Motion was taken out on
27/02/2015 for condoning the delay of 2200 days and for setting
aside ex­parte order dated 17/02/2009.  
4. In support of his submission, Mr.Mehta relied upon the
decisions of the Apex Court in the case of  Sambhaji Vs. Gangabai,
2009(1)Bom.C.R.81 and in particular paragraphs 8, 9 & 11 thereof.
He submitted that provisions of Code of Civil Procedure, 1908 are
procedural   law   and   procedural   law   should   not   ordinarily   be

construed as mandatory.   The procedural law is always subservient
to   and   is   in   aid   to   justice.     Any   interpretation   which   eludes   or
frustrates the recipient of justice is not to be followed.  He submitted
that if delay is not condoned and ex­parte order dated 17/02/2009 is
not   set   aside,   the   suit   will   go   unattended   and   uncontested.
Defendants No.1 to 18 should be given opportunity to file written
statement as also cross examine plaintiff's witness and lead their
evidence which will be in the interest of justice.    He submitted that
defendants No. 2 to 18 being trustees of defendant No.1 are innocent
litigants and therefore, indulgence should be shown to them so as to
enable them to participate in the trial.  He submitted that within one
week from today, defendants No.1 to 18 will file written statement
and in a time bound manner will complete the cross examination of
plaintiff's witness and also will complete their evidence and will not
seek undue adjournments.  He further submitted that defendants No.
1 to 18 may be put to terms like imposing costs and the Motion may
be made absolute in terms of prayer clauses (a) & (b).     He also
relied upon  the  decision  of  the  Apex Court in  the case of  Rafiq
Vs.Munshilal (1981) 2 Supreme Court Cases, 788 to contend that
because of mistake of the advocate, litigant should not suffer.
5. On the other hand, Mr.Kedar supported the impugned
order.  He submitted that reasons given in the affidavit in support of
Motion are contrary to the record.   He submitted that when the

matter was pending in this Court, representative of defendants No. 1
& 12 was present on 21/10/2008.   The matter was adjourned to
21/01/2009 for filing written statement.  He has taken me through
roznama of the suit after it was transfered to the City Civil Court,
Bombay.  He submitted that on 02/07/2013, issues were framed.  On
12/08/2013,   the   learned   trial   Judge   directed   the   parties   to   file
affidavit of evidence, documents and list of witnesses.  In pursuance
of that direction, affidavit in lieu of examination­in­chief of plaintiff
No. 9, Mr.Amar Dhanki and compilation of the original documents
were filed in the trial Court on 14/10/2013.  He submitted that on
14/10/2014, advocate of defendants No.1 & 2 was served with copy
of affidavit of  examination­in­chief  dated 24/09/2013 of plaintiff
No.9­Amar Dhanki along with compilation of original documents and
affidavit of documents dated 24/09/2013.
6. He   further   submitted   that   in   the   entire   affidavit   in
support of Motion, there is no explanation as to what steps defendant
No. 12 and defendants No. 1, 3 to 11, 13 to 18 have taken after
service of suit summons on them.  The defendants have blamed their
advocate in not contacting them and abruptly taking discharge in the
Suit.   However, entire  affidavit in  support of Motion  is silent as
regards steps taken by defendant No. 12 and defendants No. 1, 3 to
11, 13 to 18 for filing written statement and participating in the suit.
He invited my attention to letters dated 24/03/2014, 11/02/2015 &

21/02/2015 addressed by advocate to defendant No.1.   All these
letters were duly received by the defendants.   However, no steps
were taken even thereafter.   He submitted that defendants cannot
claim to be innocent litigants so as to claim any indulgence.   He
further submitted that before exercising discretion for condoning the
delay,   party must establish that it was prevented by a sufficient
cause   and   a   sufficient   cause   is   satisfactorily   and   convincingly
explained.  Inordinate delay caused by inaction or negligence lacking
bon fides would dis­entitle claimant from protection under Section 5
of the Limitation Act, 1963.  In support of his submission, he relied
upon decision of the Brijesh Kumar Vs. State of Haryana, (2014) 11
Supreme Court Cases, 351.    He further relied upon the decision of
the Apex Court in the case of  Rasiklal Manickchand Dhariwal Vs.
M/s.M.S.S.Food Products,  2012(1)   ALL   MR   968  to   contend   that
expressions “state his case”, “produce his evidence” and “address the
Court generally on the whole case” are with a view to according an
opportunity to give general outlines of the case and also indicate
generally the nature of evidence likely to be let in by him to prove his
case.    If the defendant remains exparte on the date of the hearing,
he cannot be permitted to raise any grievance.   
7. In the present case, the suit was posted on 27/02/2015
for pronouncing judgment.  It is only at that stage, Notice of Motion
was taken out for condoning the delay of 2200 days and for setting

aside   ex­parte   order   dated   17/02/2009.     Even   along   with   the
affidavit in support of Motion, defendants did not enclose written
statement.  In other words, even on the date when the Motion was
filed, no written statement was ready.     For all these reasons, he
submitted that this is not a fit case for invoking powers under Article
227 of the Constitution of India.
8. I  have  considered the  rival  submissions  made  by the
learned Counsel appearing for the parties.  I have also perused the
material on record.    As noted earlier, the plaintiffs have instituted
suit for perpetual injunction dated 30/08/2005.   The matter was
before the Prothonotary and Senior Master on 21/10/2008.  Perusal
of roznama shows that representative of defendants No. 1 & 12 was
present.   Matter was adjourned to 21/01/2009 for filing written
statement.    It is evident that at least a representative of defendants
No. 1 & 12 was present,  therefore, it cannot be said that defendants
No. 1 & 12 were unaware of adjourning the matter for filing written
statement, more so when, it is not in dispute that suit summons was
served on all the defendants.    
9. On   21/01/2009, advocate for defendants No. 1 & 12
appeared before Prothonotary and Senior Master when the written
statement  of  defendant   No.   19  dated   21/10/2008   was  taken  on
record.     On   17/02/2009,   the   Prothonotary   and   Senior   Master
recorded that defendants No. 1 & 12 and their advocate were absent.

Defendants No. 2 to 11 and 13 to 18 were absent though served.  No
written statement was filed by defendants No. 1 to 18 and therefore,
suit as against defendants No. 1 to 18 was transferred to the list of
undefended Suits.   On 01/10/2012, suit was transferred to the City
Civil Court, Mumbai.  
10. Perusal   of   letter   dated   24/03/2014   addressed   by
defendant's   advocate   to   defendants   No.   1   &   12   shows   that   he
intimated to them that suit was transferred from this Court to the
City Civil Court, Bombay and suit is presently pending for recording
of evidence.  Request was made to contact his office immediately and
give instructions in the above matter.   This letter was followed by
letter dated 11/02/2015.   In that letter, reference of earlier letter
dated   24/03/2014   was   made   and   the   grievance   was   made   that
despite   that   letter,   there   was   no   response   from   the   side   of   the
defendants.    It  was  also  informed  that  matter  was  on   board  on
11/02/2015 and the said matter was adjourned to 25/02/2015 for
arguments.  Though their advocate tried to contact on 11/02/2015,
defendant No.12 failed to receive call.  Request was, therefore, made
to contact his office and give instructions so that they can proceed
with   the   matter.     Again   letter   was   sent   on   21/02/2015   making
reference to the earlier letters dated 24/03/2014 and 11/02/2015.
It   was   specifically   made   clear   that   if   defendant   No.12   failed   to
contact his office, and give necessary instructions at the earliest, he

will not be in a position to appear and act on behalf of him and he
shall take necessary steps for taking discharge in the matter and that
if any adverse order is passed in the above matter, he shall not be
responsible for it.
11. Defendant   No.12  has   taken  out   Notice   of   Motion   on
27/02/2015 and the explanation given in the affidavit in support of
Motion and in particular paragraph 2 reads as under :
“I say that above suit was earlier filed in the Hon'ble High
Court and on 01/10/2012 he above suit was transferred
from Hon'ble High Court to this Hon'ble Court.  I say that
on  17th February 2009, the above suit was transferred to list
of undefended suits.  I say that the defendant No.1 is trust
and the defendants No.2 to 18 are the trustees of defendant
No.1 trust.  I say that initially I was looking after the above
matter but  due  to  my old  age I  could not continuously
follow   up   the   above   matter   and   therefore   later   on   the
defendant No.14 Nayan Shah was looking after the above
matter and therefore other trustees were not aware about
the stages of the above mater.   I say that the defendant
No.14 Nayan Shah expired on 11/12/2010 and he was the
only one who had all details and the documents related to
the above matter.  I say that therefore, I as well as the other
trustees  were  totally unaware about  the  progress  of the
above matter.  I say that I am 63 years old and also suffering
from diabetes and blood pressure and further I say that the
relevant papers were with the defendant No.14 and the said
papers were not traceable and due to which even I could
not contract my Advocate to draft written statement and
also could not give instructions in the above matter.  I say
that on 22/02/2015 I received letter from my Advocate for
discharging his vakalatnama.   I say that as I received the
letter I contacted by Advocate, who instructed me to come
and meet in his office.  I say that since I was not keeping
well due to my age I could not meet my advocate on time.  I
say that therefore, there was miscommunication between
me and my advocate and due to which my advocate filed
discharge application.
12. Perusal   of   affidavit   in   support   of   Motion   shows   that

defendant No.12 did not come with the clean hands.  Even he did
not   disclose   receipt   of   letters   dated   24/03/2014,   11/02/2015
and21/02/2015. The affidavit is totally silent about the steps taken
by their advocate.   Perusal of paragraph 2 extracted hereinabove
shows that defendant No.12 claims that because of old age, he could
not continuously follow up matter.  It is not possible to believe and
accept   that   defendant  No.12   is   aged   person.     In   the  verification
clause, age of the defendant No.12 is stated to be 58 years.  'No W.S.'
order was passed in 2009 which means he was at the age of 52 years
at the time of filing Notice of Motion and therefore, it cannot be said
that due to old age, he could not continue to follow up the matter.
The other ground is that defendant No.14 who was looking after the
matter died on 11/12/2010 and the other trustees were not aware of
the   stages   of   the   matter.     It   is   also   not   possible   to   accept   this
submission.   No explanation is forthcoming as to what steps have
been taken by defendant No.14 after 17/02/2009 till his death which
took place on 11/12/2010.   In entire paragraph 2,   there is no
explanation as to what steps defendants No. 1 to 18 have taken in
filing the written statement and also conducing cross examination of
plaintiff's witness.  
13. In   case   of  Salil   Dutta   Vs.   T.M.and   M.C.Private   Ltd.,
(1993) 2 Supreme Court Cases 185.  After considering its decision
in Rafiq (supra), the Apex Court  has observed in paragraphs 7 & 8

thus:
7. The question is whether the principle of the said decision
(Rafiq's)  comes to the rescue of the defendant respondent
herein. Firstly, in the case before us it was not an appeal
preferred   by   an   outstation   litigant   but   a   suit   which   was
posted for final hearing seven years after the institution of the
suit. The defendant is a private limited company having its
registered office at Calcutta itself. The persons in charge of
the defendant­company are not rustic villagers nor they are
innocent illiterates unaware of Court procedures. Prior to the
suit   coming   up   for   final   hearing   on   June   9,   1988   the
defendant had filed two applications whereupon the Court
ordered that they will be considered at the time of the final
hearing of the suit. The plaintiff's case no doubt is that the
said applications were part of delaying tactics being adopted
by the defendant­tenants with a view to protract the suit. Be
that as it may, the defendant thereafter refused to appear
before the court. According to the defendant, their advocate
advised them that until the interlocutory applications filed by
them are disposed of, the defendant need not appear before
the Court which means that the defendants need not appear
at the final hearing of the suit. It may be remembered that
the   Court   proposed   to   consider   the   said   interlocutory
applications at the final hearing of the suit. It is difficult to
believe   that   the   defendants   implicitly   believed   their
advocate's advice. Being educated businessmen they would
have known that non­participation at the final hearing of the
suit would necessarily result in an adverse decision. Indeed
we are not prepared to believe that such an advice was in fact
tendered by the advocate. No advocate worth his salt would
give   such   advice   to   his   client.   Secondly,   the   several
contradictions in his deposition which are pointed out by the
Division Bench in the impugned order go to show that the
whole   story   is   a   later   fabrication.   The   following   are   the
observations made in the Judgment of the Division Bench
with respect to the conduct of the said advocate: "We found
that the said learned advocate conducted the proceedings in a
most improper manner and that his absence on June 10,
1988 and on subsequent date was not only discourteous but
possibly a dereliction of duty to his client........ the learned
advocate had forgotten his professional duty in not making
inquiry to the Court as to what happened on June 10, 11 and
13,   1988........   the   learned   advocate   acted   in   a   most
perfunctory manner in the matter and the learned advocate
dealt with the matter in a most unusual manner. We have also
found   that   the   said   learned   advocate   had   made   serious
contradiction in the deposition before the court below. The
learned advocate in his deposition stated that he did not file

an application for adjournment on  June 9, 1988. But from
the record it was evident that it was on the basis of the
application filed on 9th June, 1988, the case was adjourned
for  cross­examination  of  the  witnesses  whose  examination
was called on the next date." The above facts stated in the
deposition of the advocate show that he indeed made an
application for adjournment on the June 9, 1988 to enable
him   to   cross   examine   the   witnesses   on   the   next   date.
Therefore, his present stand that he advised his client not to
participate in the trial from and including   June 9, 1988
onwards is evidently untrue. We are, therefore, of the opinion
that the story set up by the defendant in his application under
Order 9 rule 13 is an after­thought and ought not to have
been accepted by the Division Bench in its order dated March
3, 1992 more particular when it had rejected the very case in
its earlier Judgment dated July 8, 1991.
8.  The   advocate   is   the   agent   of   the   party.   His   acts   and
statements, made within the limits of authority given to him,
are the acts and statements of the principal i.e. the party who
engaged him. It is true that in certain situations, the Court
may, in the interest of justice, set a side a dismissal order
or   an   ex­parte   decree   notwithstanding   the   negligence
and/or misdemeanour of the advocate where it finds that
the client was an innocent litigant but there is not such
absolute rule that a party can disown its advocate at any
time and seek relief. No such absolute immunity can be
recognised.   Such   an   absolute   rule   would   make   the
working   of   the   system   extremely   difficult.   The
observations made in 'Rafiq' must be understood in  the
facts   and   circumstances   of   that   case   and   cannot   be
understood   as   an   absolute   proposition.   As   we   have
mentioned hereinabove, this was an on­going suit posted
for   final   hearing   after   a   lapse   of   seven   years   of   its
institution. It was not a second appeal filed by a villager
residing away from the city, where the Court is located.
The defendant is also not a rustic ignorant villager but a
private limited company with its head­office at Calcutta
itself and managed by educated businessmen who know
where   their   interest   lies.  It   is   evident   that   when   their
applications were not disposed of before taking up the suit
for final hewing they felt piqued and refused to appear before
the court. May be, it was part of  their delaying tactics as
alleged by the plaintiff. May be not. But one thing is clear
­they   'chose   to   non­cooperate   with   the   court.   Having
adopted such a stand towards the Court, the defendant
has   no   right   to   ask   its   indulgence.   Putting   the   entire
blame upon the advocate and trying to make it out as if
they were totally unaware of the nature or significance of
the proceedings is a theory which cannot be accepted and

ought not to have been accepted. 
14. In the instant case, even it is not the case made
out   in   affidavit   in   support   of   Motion   that   defendants   are   rustic
ignorant   villagers   or   innocent   litigants   unaware   of   the   Court
proceedings.     In   paragraph   8,   Apex   Court   has   observed   that   in
certain situation, Court may, in the interest of justice, set aside a
dismissal order of an ex­parte decree notwithstanding the negligence
and/or misdemeanour of the advocate where it finds that the client
was an innocent litigant but there is no such absolute rule that a
party can disown its advocate at any time and seek relief. No such
absolute immunity can be recognised.  It was further observed in the
case  that  the  defendant  chose   not  to  co­operate  with the  Court.
Having adopting such a stand towards the Court, the defendant has
no right to ask its indulgence.   Putting the entire blame upon the
advocate and trying to make it out as if they were totally unaware of
the   nature   or   significance   of   the   proceedings   is   a   theory   which
cannot be accepted and ought not to have been accepted.
15. In view of decision of the Salil Dutt's case as also after
considering the explanation offered by defendant No.12, I do not
find this is a fit case for exercising powers under Article 227 of the
Constitution   of   India.     As   noted   earlier,   the   suit   was   posted   on
27/02/2015 for pronouncement of judgment.  At that stage, Notice
of Motion was taken out even without enclosing written statement.

The   Motion   was   taken   out   only   by   defendant   No.12   and   by
defendants No. 1 to 11, 13 to 18.  In case of Brijesh Kumar (supra),
the Apex Court has observed that while exercising discretion by the
Court, condition precedent, namely sufficient cause for delay must be
satisfactorily and convincingly explained.  Inordinate delay caused by
inaction or negligence lacking bon fides would dis­entitle claimant
from protection under Section 5 of the Limitation Act, 1963.  In this
present case, in my opinion,  the said decision applies by all fours.
While dismissing the Motion, the learned trial Judge has directed
defendant No.12 to conclude final argument on his side on or before
next date which I am informed is 30/06/2015.  
16. In view thereof, petition fails and the same is dismissed.
Order accordingly.
                                            (R. G. KETKAR, J.)

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