1 wp4712.09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
WRIT PETITION NO. 4712 OF 2009
Savita w/o Somnath Patil,
age 27 years, occ. Household,
R/o Vidyanagar (East),
At Post Beed,
Tq.and Dist. Beed ...Petitioner
VERSUS
1] Zingaraji s/o Bajaba Misal,
age 55 years,occ. Advocate,
R/o Sarafnagar,Juna Jalna,
Tq. And Dist.Jalna,
2] Vijayabai w/o Vyankatayya Kotagiri,
age 53 years, occ. Household,
R/o Old Vegetable Market,
Kalpvraksha Niwas,
Near Office of daily Parshvabhumi ,
Beed, Tq. And Dist. Beed,
3] Anjali d/o Vyankatayya Kotagiri,
age 27 years, occ.household,
R/o as above,
4] Mahendra s/o Zingaraji Misal,
age 20 years,occ.Education,
r/o Sarafnagar,Old Jalna,
Tq. And Dist. Jalna,
5] Radhabai w/o Zingaraji Misal,
age 50 years, occ. Household,
R/o as above ...Respondents
.....
Shri V.D.Salnuke, advocate for the Petitioner
Shri K.B.Jadhavar, advocate for respondent no.1
Shri S.H.Jagiasi, Advocate for respondent nos. 2 and 3
Shri S.B.Bhapkar, advocate for respondent nos. 4 and 5
.....
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CORAM : S.S.SHINDE, J.
DATE OF RESERVING THE JUDGMENT : 22.11.2013 DATE OF PRONOUNCING THE JUDGMENT : 03.12.2013 J U D G M E N T :-
1] Rule. Rule made returnable forthwith. Heard with the consent of the parties.
2] This Writ Petition takes exception to the order, dated 6.9.2007, passed by the Civil Judge, Senior Division, Jalna, in Special Civil Suit No. 23 of 2007 and the judgment and order, dated 17.11.2008, passed by the Civil Judge, Senior Division, Jalna in MARJI No. 34 of 2008.
3] The petitioner herein resides at Vidyanagar, Beed and does agricultural work.
4] Respondent no.1 is residing at Jalna and is practicing advocate. Respondent nos. 2 and 3 herein are residents of Beed. Respondent no.4 herein is the son of respondent no.1 and respondent no.5 herein is wife of respondent no.1 and mother of respondent no.4.
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5] It is the case of the petitioner that
respondent nos. 4 and 5 got executed a registered sale deed in their favour in respect of suit property, and therefore, they are also added as party respondents in the present Writ Petition.
6] It is the case of the petitioner that maternal house of the petitioner is at Chincholi, Taluka Ambad, District Jalna. Respondent nos. 2 and 3 being the owners of land Gut No. 244 to the extent of their share, situated at Patharwada (Bk.), Taluka Ambad, District Jalna, agreed to sell their land to the petitioner for a consideration of Rs.15,00,000/-, and accordingly on 6.7.2005 executed an agreement of sale by accepting an amount of Rs.13,00,000/- and delivered possession of the said land in favour of the petitioner. The agreement of sale executed by respondents is on Stamp Paper of Rs.100/- having signatures of witnesses and the said agreement of sale was also registered before the Notary. The petitioner has placed on record a copy of agreement of sale at Exh. A with the Writ Petition.
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7] It is further case of the petitioner that
immediately after execution of agreement of sale, the petitioner filed an application with the revenue authority for taking mutation entry, and the Talathi, after following due procedure recorded the mutation entry and same has been sanctioned by the competent authority. The copy of the said mutation entry in the name of the petitioner is placed on record.
8] It is also case of the petitioner that, after execution of agreement of sale by respondent nos. 2 and 3, one Shri Bhaskar Bansi Magare had created some dispute in Tahsil office, Ambad, and therefore, the registered sale deed could not be executed and thereafter respondent nos. 2 and 3 avoided to execute the registered sale deed. The petitioner through her advocate Shri R.D.Thombare, resident of Kaij, District Beed, issued a notice to respondent nos. 2 and 3 and asked them to execute registered sale deed in favour of the petitioner. Since there was no response from respondent nos. 2 and 3, the petitioner filed Special Civil Suit No. 23 of 2007 before the Civil Judge, Senior Division at Jalna for specific performance. For filing the suit, the petitioner engaged advocates Shri ::: Downloaded on - 23/12/2013 20:31:57 ::: 5 wp4712.09 Thombare from Kaij and respondent no.1 i.e. Zingaraji Bajaba Misal from Jalna.
9] It is the case of the petitioner that, respondent no.1 is practicing advocate at Jalna, as well as he is closely related with the petitioner, as he is the husband of sister of father of the petitioner. It is also the case of the petitioner that, after filing the suit, respondent no.1 did not take any efforts for service of summons to respondent nos. 2 and 3, and therefore, in the said suit, no notices or summons were served to respondent nos. 2 and 3.
10] It is further case of the petitioner that, after filing of the suit, the mother of the petitioner became severely ill and she was required to take treatment in hospital at Aurangabad. However, subsequently, the mother of the petitioner died on 1.5.2007. The petitioner is elder daughter of her father. It is the case of the petitioner that respondent no.1 and father of the petitioner are having good and cordial relations with each other.
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11] The husband of the petitioner is educated upto
B.A.B.J. and involved in various activities and
business and having good relations in the society.
12] It is the case of the petitioner that, respondent nos. 2 and 3 are residing at Beed and the petitioner is also residing at Beed. There were relations between ig husband of the petitioner and respondent nos. 2 and 3, and therefore, respondent nos.
2 and 3 gave proposal to sell out their total land and said offer was accepted by the petitioner and her husband, thereby entering into agreement of sale. At the time of purchasing of the suit property, bearing Gut No. 244, the relations between petitioner s family and respondent nos. 2 and 3 and their sons were cordial.
13] It is the case of the petitioner that, the father of the petitioner used to stay at the house of respondent no.1. The father of the petitioner performed second marriage with Ashwini Bhikaram Prabhale closely related with respondent no.1 and after said marriage, the father of the petitioner developed close relations with respondent no.1 and is totally ::: Downloaded on - 23/12/2013 20:31:57 ::: 7 wp4712.09 under control of respondent no.1 and his wife.
14] It is the case of the petitioner that, the attitude of respondent no.1 towards the petitioner and her husband was changed after death of her mother and respondent no. 1 prepared a plan to grab the property of the petitioner.
15] It is also the case of the petitioner that, respondent no.1 got executed a registered sale deed of the suit property from the father of the petitioner Shivaji Santram Gaike in favour of his son respondent no.4 i.e. Mahendra Zingaraji Misal and consideration was shown to be paid by said Mahendra Misal amounting to Rs.8,71,000/-. It is the contention of the petitioner that, in fact, respondent no.4 Mahendra Misal was shown as aged about 20 years. At the relevant time, he was taking education and had no any source of income. Likewise, the father of the petitioner was also having no concern with the said property. It is the case of the petitioner that, respondent no.1 got the suit property registered in favour of his son without payment of consideration and without actual delivery of possession. The petitioner ::: Downloaded on - 23/12/2013 20:31:57 ::: 8 wp4712.09 was not having any knowledge regarding the said registered sale deed in favour of the son of respondent no.1.
16] The petitioner approached respondent no.1 for inquiry in respect of progress and development in the suit and at that time, respondent no.1 impressed upon the petitioner that certain documents are required to be executed by her for the purpose of civil suit and the petitioner was taken to the office of the Registrar and respondent no.1 got executed certain documents. It is the case of the petitioner that respondent no.1 is husband of her real aunt, and therefore, the petitioner had total faith in him. The petitioner believing respondent no.1 signed some documents without reading and without knowing the nature and contents of the said documents. The petitioner came to know in respect of the said documents when some questions were asked to her by the advocate in cross-examination by the advocate in the lower court and as the petitioner was not having clear knowledge, the petitioner could not give answer to the said questions in cross-examination.
Thereafter, the petitioner made detailed inquiry regarding the said documents and came to know that the ::: Downloaded on - 23/12/2013 20:31:57 ::: 9 wp4712.09 said document is in the nature of power of attorney.
On going through the contents of the said document, one can reveal that there was no cause to execute such type of document. In the said document, there are some contrary and adverse entries in respect of relinquishment of rights. It is the case of the petitioner that there was no question of relinquishment of right of the petitioner in favour of the son of respondent no.1 and there was no any reason to execute such type of documents. It is the case of the petitioner that the said document is creature of fraud played by respondent no.1 on the petitioner.
17] It is the case of the petitioner that, the petitioner got knowledge in respect of withdrawal of the suit by respondent no.1. Such withdrawal was without the consent of the petitioner and behind back of the petitioner. The petitioner also came to know that, before withdrawal of the suit respondent no.1 got executed a registered sale deed of the suit property in favour of his wife and son. The son of respondent no.1 by name Mahendra is taking education and wife is not qualified one and she is house wife. Though it was shown in the said registered sale deed that the ::: Downloaded on - 23/12/2013 20:31:57 ::: 10 wp4712.09 property is being purchased by respondent nos. 4 and 5 independently, however,they had no income source for purchasing the said property or for expenses of registration of sale deed in respect of suit property.
Therefore, it is the contention of the petitioner that respondent no.1 by playing fraud on the petitioner executed the sale deed in favour of his son and wife and also withdrew the suit filed by the petitioner without her instructions and knowledge. Hence, this petition challenging the order passed by the court allowing the withdrawal of suit by respondent no.1 in which the petitioner is plaintiff.
18] The petitioner has filed the rejoinder in reply to the affidavit-in-reply filed by respondent no.1. It is stated therein that many incorrect statements are made in affidavit in reply filed by respondent no.1.
Para 2 of the said rejoinder is reproduced herein below :-
2] The respondent no.1 in para no.4 of his reply has referred the deposition of Mr.Shivaji Santaram Gaike i.e. father of petitioner; it is contention of respondent no.1 that the petitioner herself directed to him in presence of that Mr. Shivaji Gaike for withdrawing the matter. The respondent no.1 also annexed the copy of deposition of Shivaji Gaike at Exh.R-2. However, it is important to note that ::: Downloaded on - 23/12/2013 20:31:57 ::: 11 wp4712.09 though that Mr. Shivaji is happen to be the father of petitioner, still the relation between him and petitioner Savita got strained on cause of second marriage by Mr. Shivaji. The petitioner Savita is born from first wife of Mr. Shivaji. Though he is age old person he got remarried with another woman, for which the petitioner having strong objection, since the date of second marriage petitioner did not kept any kind of relation with him. It is also important to note that respondent no.1 is husband of Shivaji Gaikes sister and the second marriage took place by assistant of Mr. Misal. Hence they become more close to each other.
The petitioner pointed out said fact to the Ld. Civil Judge, Senior Division, Jalna however at that time petitioner could not secure the Proofs of second marriage, but now during pendency of matter the petitioner got Birth Certificate of Child Born out of second marriage. Admittedly the mother of petitioner i.e. Shanta died on 01.05.2007, however, the birth certificate shows date of Birth as 31.03.2010. Hence it clearly reveals that child born of second wife.
Hence in the above factual background the deposition of Shivaji Gaike cannot be acceptable in view of provision of Evidence Act. The copy of Death Certificate of Shanta Gaike and Birth Certificate dated 18.05.2010 issued by Chief Officer, Municipal Council, Beed is annexed herewith and marked Exhibit P-1 colly.
19] It is further stated in the rejoinder that respondent no.1 has filed false affidavit before the trial court as well as before this court. The suit is ::: Downloaded on - 23/12/2013 20:31:57 ::: 12 wp4712.09 withdrawn without any instructions and with an intention to grab the suit property. It is stated in para 6 that, the Civil Judge, Senior Division, Jalna has give more importance to the power of attorney cum transfer deed in favour of Mahendra Misal. However, it is important to note that the property is situated at Patharwada, Taluka Ambad, however, the alleged deed is executed at the office of Registrar at Jalna and stamp duty is fixed as Rs.50/- only. It is further stated that without admitting but assuming that deed is executed, the transfer deed also requires to be executed at Registrar s office at Ambad by paying appropriate stamp duty. It is also stated that the said document i.e. power of attorney cum transfer deed itself is got executed by respondent no.1 by taking undue advantage of his position as an advocate.
20] Learned counsel appearing for the petitioner invited my attention to the provisions of Order III Rule 4 and also Order XXIII Rule 1 of the Civil Procedure Code and submits that the suit filed by the petitioner should not have been withdrawn by respondent no.1 without instructions of the petitioner and without her knowledge. It is submitted that since respondent ::: Downloaded on - 23/12/2013 20:31:57 ::: 13 wp4712.09 no.1 got executed the registered sale deed in respect of the suit property in favour of his son an wife, the suit filed by the petitioner has been withdrawn by respondent no.1 without instructions and behind her back, and thereby respondent no.1 has played fraud on the petitioner. It is submitted that the petitioner did not give any written instructions or there is no any affidavit or application signed by the petitioner for withdrawal of the suit, and as such the court should not have passed the order only on the basis of the prayer of respondent no.1 to withdraw the said suit. It is submitted that withdrawal pursis filed by respondent no.1 is without signature of the plaintiff/petitioner or without any supporting affidavit and the Civil Judge, Senior Division, Jalna allowed the withdrawal of said suit only on the request of the advocate appearing for the plaintiff. It is submitted that father of the petitioner got second time married, and therefore, he has no cordial relations with the petitioner.
21] Learned counsel appearing for the petitioner submits that one of the reason assigned by the court while rejecting the application for restoration of the ::: Downloaded on - 23/12/2013 20:31:57 ::: 14 wp4712.09 suit is that the father of the petitioner in his evidence before the court stated that, oral instructions were given by the petitioner to respondent no.1 for withdrawal of the suit. It is submitted that withdrawal of the suit by respondent no.1 was not in the interest of the plaintiff. The plaintiff/petitioner had never instructed respondent no.1 for withdrawal of the suit.
ig It is submitted that the alleged power of attorney in the name of respondent no.4 is not genuine document and signatures on the said document have been obtained by respondent by playing fraud on the petitioner. It is submitted that the mother of the petitioner died and after her death, the father of the petitioner got married, and therefore, the relations between the petitioner and her father are strained.
22] Learned counsel for the petitioner invited my attention to page nos. 105 and 106 of the compilation of the Writ Petition and submits that the copy of the death certificate of the mother of the petitioner has been placed on record. Learned counsel further submitted that not only that the father of the petitioner got married second time, however, there is a ::: Downloaded on - 23/12/2013 20:31:57 ::: 15 wp4712.09 child to the second wife from the father of the petitioner. Therefore, the counsel appearing for the petitioner submits that heavy reliance placed by the court on the statement of the father of the petitioner was misplaced, in as much as, the relationship between the petitioner and father is not cordial and the father started acting contrary to the interest of the petitioner after his second marriage.
23] Learned counsel appearing for the petitioner invited my attention to the judgment of the Supreme Court in the case of Suraj Lamp and Industries Pvt.
Ltd. Vs State of Haryana and another, reported in 2012 (1) Bom.C.R. 293 and submits that the Supreme Court in the said judgment in para 13 has discussed the scope of power of attorney. The Supreme Court observed that the power of attorney is not an instrument of transfer in regard to any right,title or interest in an immovable property. Therefore, according to the counsel appearing for the petitioner, the alleged power of attorney in favour of respondent no.4 by the petitioner cannot be a document for transfer of any right, title or interest in any immovable property.
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24] Reliance is placed on the judgment of the
Supreme Court in the case of P.D.Gupta vs Ram
Murti,reported in 1997 (7) SCC 147, in which it is held thus :-
A lawyer conducting the case for his client, but to the Court as well as to the opposite party in the conduct of the case. Administration of justice is stream which has to be kept pure and clean. It has to be kept unpolluted.
Administration
ig of justice is not
something which concerns the Bench only. It concerns the Bar as well. Bar is the principal ground for recruiting Judges.
No one should be able to raise a finger about the conduct of a lawyer. While conducting the case he functions as officer of the Court. Here P.D.Gupta in buying the property as in effect subverted the process of justice. His action has raised serious questions about his fairness in the conduct of the trial touching his professional conduct as an advocate. By his action he has brought the process of administration of justice in disrepute. The Bar Council of India and State Bar Councils perform varying functions under the Act and the Rules. They are representative bodies of the Advocate and are charged with the responsibility of maintaining the discipline amongst the members and punish those who go astray from the path of rectitude set out for them.
25] Therefore, relying upon the observations of the Supreme Court in the case of P.D.Guta (supra), counsel appearing for the petitioner submits that in the facts of the present case, respondent no.1 acted contrary to ::: Downloaded on - 23/12/2013 20:31:57 ::: 17 wp4712.09 the interest of the petitioner and withdrawal of the suit without consent of the petitioner and without any instructions behind her back amounts to professional misconduct and more so in the facts of the present case, since the sale deed executed in respect of the suit property is in favour of respondent nos. 4 and 5 i.e. the son and wife of respondent no.1.
26] Therefore, relying upon the pleading in the petition, annexures thereto, the relevant provisions of the Civil Procedure Code and the judgments cited supra, learned counsel appearing for the petitioner submits that the petition deserves to be allowed.
27] On the other hand, learned counsel appearing for respondent no.1 invited my attention to the affidavit in reply filed on behalf of respondent no.1.
It is submitted that in view of the provisions of Order XXIII Rule 1 of the Civil Procedure Code, respondent no.1, on instructions of the petitioner, has withdrawn the suit. It is submitted that it is not the requirement of law that the suit only can be withdrawn on written instructions by the plaintiff. It is submitted that, the provisions of Order III Rule 4 and ::: Downloaded on - 23/12/2013 20:31:57 ::: 18 wp4712.09 Order XXIII Rule 1 of the Civil Procedure Code empowers the advocate and gives implied authority to the advocate to act upon in the interest of his client. It is submitted that the court has considered the evidence brought on record and held that withdrawal of suit by respondent no. 1 was as per the instructions of the petitioner i.e. plaintiff.
28] Learned counsel appearing for respondent no.1 invited my attention to the reasons recorded by the trial court and submits that the court has taken into consideration the evidence led by the parties and also the judgments of this court, also the judgments of the High Court and the Supreme Court and thereafter held that withdrawal of suit was on instructions of the plaintiff, and therefore, this court may not interfere in the impugned judgment and order.
29] Learned counsel appearing for respondent nos. 2 and 3 invited my attention to the reasons recorded by the trial court and submits that cogent reasons are recorded, and therefore, this court may not interfere in the impugned order.
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30] Learned counsel appearing for respondent nos. 4
and 5 submits that the suit was filed only against respondent nos. 2 and 3 and respondent nos. 4 and 5 are subsequent purchasers. No relief can be granted against respondent nos. 4 and 5 at the instance of the plaintiff. It is submitted that no notices were served upon the defendant before withdrawal of the suit. It is submitted that the general power of attorney was executed by the petitioner in favour of respondent no.4 and the said document is registered. By the registered sale deed, dated 30.8.2007 the suit property is purchased by respondent nos. 4 and 5, and therefore, it cannot be said that the said transaction is at the instance of respondent no.1 by playing fraud on the petitioner.
31] Learned counsel for respondent nos. 4 and 5 invited my attention to the prayers in the Writ Petition and submits that the petition arises out of rejection of the prayer for restoration of the suit/recalling the earlier order of allowing withdrawal of the suit, and therefore, the petitioner cannot ask for reliefs against respondent nos. 4 and 5.
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32] It is submitted that so far as prayer clauses
E, F and G of the Writ Petition are concerned, the
said prayers are over and above the prayers which were in the original application for recalling the order. It is submitted that the Writ Petition as against respondent no.1, 4 and 5 is not maintainable, since they were not parties to the suit. It is submitted that interim relief granted by this court, ig not to create third party interest in the suit property, could not have been granted in view of the fact that respondent nos. 4 and 5 are not party to the suit. It is submitted that the sale deed executed in favour of respondent nos. 4 and 5 are by the original owner. The suit is withdrawn on the instructions of the plaintiff.
The issue in dispute is not about the execution of the sale deed or general power of attorney, and therefore, reliance place by the counsel appearing for the petitioner in afore mentioned judgments of the Supreme Court has no relevance in the facts of the present case. Therefore, counsel appearing for the respondents jointly submit that the Writ Petition may be rejected.
33] I have given careful consideration to the submissions advanced by the counsel appearing for the ::: Downloaded on - 23/12/2013 20:31:57 ::: 21 wp4712.09 petitioner and respective respondents. With their able assistance, perused the pleadings in the petition, annexures thereto and all other documents placed on record.
34] At the out set, it would be apt to reproduce herein below the prayers in Writ Petition, which read thus :-
(A) This Writ Petition may kindly be allowed;
(B) Record and proceedings may kindly be called for;
(C) The order dtd. 6.9.2007 passed by Ld.
Civil Judge, Senior Division, Jalna in respect of withdrawal of suit in Special Civil Suit No. 23/2007 and order dtd. 17.11.2008 passed by Ld. Civil Judge, Senior Division, Jalna in MARJI No. 34/2008 may kindly be quashed and set aside by passing an appropriate writ, order or directions;
(D) The suit filed by the petitioner bearing Special Civil Suit No. 23/2007 for specific performance of contract in respect of land Gut No. 244, situated at Patharwala (Bk.), Tq. Ambad, District Jalna may kindly be restored on its original stage.
(E) The respondent no.1 may kindly be punished regarding his misconduct by taking an appropriate action or by issuing an appropriate direction to that effect.
(F) The respondent nos. 1, 4 and 5 and other their family members, relatives, agents and servants may kindly be ::: Downloaded on - 23/12/2013 20:31:57 ::: 22 wp4712.09 restrained from causing obstruction in the lawful and peaceful possession used and enjoyment of the petitioner over the suit property by issuing appropriate orders to that effect.
(G) The registered sale deed executed in favour of respondent nos. 4 and 5 by respondent nos. 2 and 3 may kindly be cancelled by passing an appropriate order and the respondent nos. 2 and 3 may kindly be directed to execute the registered sale deed of suit property bearing Gut No. 244 situated at village patharwala (Bk.) Tq. Ambad, District Jalna in favour of the petitioner.
(H) Any other suitable relief may kindly be granted in favour of the petitioner.
35] Upon perusal of the prayers in the petition, the prayer clauses E, F and G cannot be granted in this Writ Petition. So far as prayer clause E is concerned, the appropriate remedy for the petitioner is to approach the Bar Council of Maharashtra and Goa and it appears that already the petitioner has approached the Bar Council of Maharashtra and Goa making grievance against respondent no.1. So far as prayer clause F is concerned, said prayer can only be entertained in an appropriate suit wherein respondent no.1, 4 and 5 are defendants. So far as prayer clause G is concerned, the petitioner can take out appropriate remedy for cancellation of sale deed executed in favour of ::: Downloaded on - 23/12/2013 20:31:57 ::: 23 wp4712.09 respondent nos. 4 and 5 by respondent nos. 2 and 3.
36] In this petition, this court is mainly concerned with the order passed by the Civil Judge, Senior Division, Jalna allowing respondent no.1 to withdraw the suit by order, dated 6.9.2007 and further the order passed below Exh. 1 in MARJI No. 34 of 2008, dated 17.11.2008.
37] At this juncture, it would be appropriate to reproduce herein below the provisions of Order III Rule 4(1) and Order XXIII Rule 1(1) of the Civil Procedure Code,which read thus :-
Order III-Recognised Agents and Pleaders.
......... .............
[4] Appointment of Pleader (1) No
pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorized by or under a power-of- attorney to make such appointment.
....... ........
Order XXIII-Withdrawal and Adjustment of Suits.
[1] Withdrawal of suit or abandonment of part of claim :- (1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim :
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Upon perusal of the provisions of Rule 4(1) of Order III of the Civil Procedure Code, it is abundantly clear that, no pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorized by or under a power-of-attorney to make such appointment.
As also on perusal of Rule 1(1) of Order XXIII of the Civil Procedure Code it is clear that, at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
38] The petitioner filed application under Section 151 of the Civil Procedure for recalling/withdrawal of the order passed by the Civil Judge, Senior Division, Jalna on 6.9.2007. The said application was heard and decided by the Civil Judge, Senior Division, Jalna by the impugned order. While deciding the said application, the concerned court framed four points for its determination. The 1st point i.e. Whether ::: Downloaded on - 23/12/2013 20:31:57 ::: 25 wp4712.09 respondent no.1 had authority to withdraw the suit without the signature of the applicant ? is concerned, the said point is answered in affirmative; and the 2nd point i.e. Whether the applicant proves that respondent withdrawn her suit without instruction from her ? is answered in negative. While recording the reasons, the court has discussed Point nos. 1 and 2 together.
39] It appears that the court has considered the affidavit of the petitioner in examination-in-chief at Exh. 11; and thereafter in para 6 it adverted to cross-
examination of the petitioner and observed that cross-
examination of the petitioner discloses that she is facing criminal case of forgery and misappropriation.
The court has observed that the applicant has denied that as the matter was settled out of court, she instructed the respondent no.1 to withdraw the suit in presence of her father Shivaji Gaike and accordingly respondent no.1 had withdrawn the suit. Therefore, it appears that in cross-examination, the petitioner has specifically denied that the matter was settled out of court and she instructed respondent no.1 to withdraw the suit. It further appears that the petitioner was ::: Downloaded on - 23/12/2013 20:31:57 ::: 26 wp4712.09 confronted with various documents including withdrawal pursis, certified copy of the application for withdrawal, list of documents, certified copy of the plaint, Roznama, Vakalatnama, etc. The court adverted to withdrawal pursis at Exh. 17 and Exh. 20, which disclose that the court has passed specific order that the plaintiff has filed withdrawal pursis through her advocate and suit is disposed of as withdrawn.
40] The court has also adverted to Exh. 25 i.e. general power of attorney in favour of respondent no.4 by the petitioner. It appears that the court has also adverted to the contents of the said power of attorney and observed that it appears that the possession of the suit property is also delivered to respondent no.4 by the petitioner. It is further observed that the said power of attorney is not yet cancelled by the petitioner. In para 7 of the impugned order, the court has referred to the contents of the affidavit of examination-in-chief at Exh. 26 filed by the respondent no.1. It appears that respondent no.1 has stated that the suit was withdrawn on the instructions of the petitioner. However, there is nothing on record to indicate that there was any written instruction as such ::: Downloaded on - 23/12/2013 20:31:57 ::: 27 wp4712.09 by the petitioner for withdrawal of the suit. It also appears that respondent no.1 has stated in his affidavit in reply about power of attorney executed in favour of his son by the petitioner and also fact that the petitioner instructed him to withdraw the suit, as she was unable to remain present before the court on the date of the suit, and respondent no.1, on instructions, has withdrawn the suit on 6.9.2007.
41] Respondent no.1 was subjected to cross-
examination and in his cross-examination, he admitted that he is karta of his family. It appears that though he claimed that there is partition between the petitioner and respondent no.4, however, they are residing together for other purposes, such as mess, worship, etc. He has admitted in his cross-examination that the mother of the petitioner i.e. first wife of Shivaji Gaike is no more. He claims that he is aware about the compromise between the plaintiff and defendants, which had taken place in his own house. He claimed that the compromise was beneficial to the petitioner, and therefore, he withdrew the suit without obtaining signature of the petitioner on withdrawal pursis, as she is close relative and having full faith ::: Downloaded on - 23/12/2013 20:31:57 ::: 28 wp4712.09 in him. It further appears that PW2 Shivaji Gaike father of the petitioner also filed the affidavit in lieu of examination-in-chief and stated that the applicant had instructed respondent no.1 to withdraw the suit and same was withdrawn. The court has observed that Shivaji Gaike has not married second time. However, from perusal of the documents placed on record along with this Writ Petition, there is no doubt that PW2 Shivaji Gaike got married second time.
42] Upon perusal of the impugned judgment, it appears that respondent no.1 has given vital admissions in his cross-examination. He stated that, he is karta of the family. He further stated that he is residing with respondent nos. 4 and 5. He further stated that he did not obtain the signature of the plaintiff Savita on withdrawal pursis. He further stated that the compromise between the parties had taken place in his house. Therefore, these vital admissions given by respondent no.1, who was engaged as advocate by the petitioner, would make it clear that the sale deed is executed in favour of respondent nos. 4 and 5 in respect of the suit property by respondent nos. 2 and 3. Respondent no.1 is karta of the family.
::: Downloaded on - 23/12/2013 20:31:57 :::29 wp4712.09 According to him, compromise between the parties had taken place in his house, and therefore, the interest of respondent no. 1 was not only confined to his role as advocate, but he is father of respondent no.4 and husband of respondent no.5.
43] Indisputably, there is sale deed executed in respect of the suit property in favour of respondent nos. 4 and 5, and therefore, it was incumbent upon the concerned court to find out the truth whether the plaintiff/petitioner is really interested in withdrawing the suit. Therefore, even if the findings recorded by the court in respect of Point no.1 that respondent no.1 had authority to withdraw the suit without the signature of the applicant are taken as it is and accepted, even then in the peculiar facts of this case the concerned court should have been more careful while adjudicating upon Point no.2. In fact, it is admitted position that, there is no any application signed by the petitioner or affidavit asking respondent no.1 to withdraw the suit. It is true, such requirement is not necessary, however, in the peculiar facts of this case, when respondent no.1 not only is acting as an advocate, but is father of ::: Downloaded on - 23/12/2013 20:31:57 ::: 30 wp4712.09 respondent no.4, in whose favour sale deed of the suit property is executed. Therefore, there is every reason to accept the case of the petitioner that the petitioner did not instruct respondent no.1 to withdraw the suit.
44] The trial court has relied upon the statement
of Shivaji Gaike,
ig the father of the petitioner,
however, it has come on record that the father of the petitioner got married second time. Even if the observations of the trial court that nothing has been placed on record to hold that Shivaji Gaike has got married second time, are taken as it is, even then, merely because the father of the petitioner stated before the court that the petitioner instructed respondent no.1 to withdraw the suit, cannot be accepted as a gospel truth, in view of the fact that the petitioner is major, not only that, but she knows her responsibilities.
45] The Supreme Court in the case of Jamilabai Abdul Kader vs Shankarlal Gulabchand and others, reported in 1976 Mh.L.J. Page 1 held thus :-
::: Downloaded on - 23/12/2013 20:31:57 :::31 wp4712.09 A legal practitioner, whether an Advocate or Pleader, therefore, has actual though implied authority to compromise a case even without specific consent from his client subject to the two overriding considerations (i) he must act in good faith, and for the benefit of his client otherwise the power fails and (ii) it is prudent and proper to consult his client and take his consent if there is time and opportunity. In any case, if there is any instruction to the contrary or withdrawal of authority the implicit power to compromise will fall to the ground.
46] If the facts of the case in hand are examined in the light of the observations of the Supreme Court reproduced herein above in the case of Jamilabai (supra), the withdrawal of the suit by respondent no.1 does not appear to be in good faith and for the benefit of the petitioner, rather it appears that such withdrawal appears to be without instructions of the petitioner, so as to advance advantage/benefit to respondent nos. 4 and 5, who are the son and wife of respondent no.1.
47] Counsel appearing for the petitioner is right in placing reliance in the case of Suraj Lamp (supra) and arguing that the power of attorney is not an instrument of transfer in regard to any ::: Downloaded on - 23/12/2013 20:31:57 ::: 32 wp4712.09 right, title or interest of immovable property.
Para 13 from the said judgment of the Supreme Court reads thus :-
A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1-A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In (State of Rajasthan Vs. Basant Nehata) 5, 2005 DGLS (soft)1110:2005(12)SCC 77, this Court held :-
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the ::: Downloaded on - 23/12/2013 20:31:57 ::: 33 wp4712.09 limitations contained in the said deed,the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers -of-Attorney Act is valid. A power of attorney, we have noticed herein before, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable.
The donee is exercise of his power under such power of attorney only acts in place of the donor subject to course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.
48] Counsel appearing for the petitioner is also right in arguing that a lawyer conducting the case for his client, is not only conducting the case ::: Downloaded on - 23/12/2013 20:31:57 ::: 34 wp4712.09 for his client, but also to the Court as well as to the opposite party.
49] The Supreme Court in the case of Dadu Dayal Mahasabha vs Sukhdev Arya and another, reported in 1990 (1) Mah.L.R. 935 held that, if the order permitting withdrawal of the suit is passed under Section application 151 for of the recalling Civil the Procedure said order Code, under Section 151 of the Civil Procedure Code is maintainable.
50] Upon perusal of the affidavit in reply filed by respondent no.1, this court has noticed that para 1 of the affidavit in reply has not been happily worded. In para 2, respondent no.1, who is legal practitioner, do not bother to mention the correct spelling of words maintainable and trial . The same mistake has been committed through out the affidavit in reply. From reading para 5 in its entirety, it is difficult to find out what exactly respondent no.1 was to convey. The word good faith has been written God faith .
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The spelling of word pursis has been mentioned as
purses . At many places in affidavit in reply
such mistakes have been committed.
51] Therefore, in the light of discussion herein above and in the peculiar facts and circumstances of the case, the role of respondent no.1 was not only as a pleader of the petitioner, but he was of an interested person in the suit property being karta of the family, in as much as, the sale deed was executed in favour of respondent no.4 who is son of respondent no.1, and therefore, withdrawal of the suit by respondent no.1 cannot be said to be in the interest of petitioner/plaintiff.
52] In the peculiar facts of this case, in order to save the reputation of the judicial institution, it appears to this court that, the impugned orders is required to be interfered with by restoring Special Civil Suit No. 23 of 2007 to its original file, thereby setting aside the order, dated 6.9.2007, passed by the Civil Judge, Senior ::: Downloaded on - 23/12/2013 20:31:58 ::: 36 wp4712.09 Division, Jalna in Special Civil Suit No. 23 of 2007, as well as the judgment and order, dated 17.11.2008, passed by the Civil Judge, Senior Division, Jalna in MARJI No. 34 of 2008.
53] In the result, following order :-
(i) The Writ Petition partly succeeds. Same is allowed in terms of prayer clauses C and D .
(ii) Special Civil Suit No. 23 of 2007 stands restored to its original file.
(iii) So far as prayer clauses E, F and G are concerned, this court has not expressed any opinion and it is for the petitioner to take appropriate remedy for redressal of her grievance in respect of prayer clauses E, F and G .::: Downloaded on - 23/12/2013 20:31:58 :::
37 wp4712.09
(iv) This court has not expressed any
opinion about merits of the subject
matter involved in the suit and it is for the concerned court to decide the said suit on merits, in accordance with law, after affording opportunity to all the parties to the suit.
(v) Rule is made absolute to the
above extend.
(vi) Petition stands disposed of.
(S.S.SHINDE, J.)
dbm/wp4712.09
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