Ashok Ravji Vadodriya, Wagri ... vs Municipal Corporation Of Greater ...
2003 Latest Caselaw 463 Bom

JUDGMENT

D.B. Bhosale, J.

1. Heard Mr. Walawalkar, learned counsel for the appellants and Ms Modale, learned counsel for the respondent.

2. These three Appeals from order arising from common judgment and order dated 19th October, 2002 passed by the City Civil Court, Bombay, in Notice of Motion No. 374 of 2002 in L.C. Suit No. 1047 of 1999, Notice of Motion No. 375 of 2002 in L.C. Suit No. 1049 of 1999, and Notice of Motion No. 376 of 2002 in L.C. Suit No. 1050 of 1999, can be conveniently disposed of at the motion hearing stage.

Admit. Ms Modale, learned counsel, waives service for respondent. By consent of learned counsel for the parties, matters are taken up for final disposal.

3. All three notices of motion were filed for restoration of the suits which came to be dismissed by separate order dated 4.12.2001, 29.11.2001 and 29.11.2001 respectively. Though, the appellants in all three suits are different, the defendant is common. The facts leading to the appeals are similar and, therefore, they are being disposed of by common order.

4. The facts reflected in the impugned order reveal that all the three suits, which are transferred from court room No. 10 to 8, had not been attended by the learned Advocate on record. They were fixed on several occasions for taking further steps in the matters. However, none appeared for the appellants-plaintiffs after the transfer of the suits from court room No. 10 to 8. Resultantly, one suit came to be dismissed in default on 4.12.2001 and other two suits on 29.11.2001. The appellants-plaintiffs came to know the dismissal of the suits in default only on 11.1.2002 when the appellants wanted to move the notices of motion in the said suits for contempt. The affidavit of the clerk, filed in support of the Notices of Motion for restoration, has explained that the last date in the diary of the learned advocate, in relation to the aforesaid suits, was noted by him as 10.1.2001 and thereafter, though inadvertence, further dates had remained to be noted in the diary. However, the adjourned date recorded in the Roznama of 22.11.2000 was 9.1.2001 and not 10.1.2001 as claimed by the clerk in his affidavit. The learned Judge, therefore, in the impugned order has recorded that the advocate/clerk ought to have made enquiry to find out why matters did not appear on 10.1.2001. The order further records that from the facts it has to be presumed that the advocate and his clerk had knowledge about the developments in the matters and they ought to have been more diligent and careful. The learned Judge, while rejecting all the three notices of motion for restoration, has recorded that not only the learned advocate and his clerk were callous in attending the matters diligently but even the plaintiffs were also in a deep slumber, who did not bother to attend the dates of hearing.

5. The disturbing feature of the impugned order is the reasoning recorded by the learned Judge in paragraph 7 thereof while rejecting the notices of motion for restoration of all three suits to file. Paragraph 7 reads thus:

"7. I may make clear that it is the duty of litigant to attend the court and convey adjourned date to his advocate who represents him on such adjourned dates. It is not that the advocates or their clerks are to take adjourned dates and covey it to the litigants. This is unwarranted and undesired practice that is being followed and then on their failure to convey the dates the litigants come out with shelter that wrong of the advocates should not result in penalising them. This practice is bound to be curbed so that the litigants would know their duty and advocates need not extend such services and if they do let their litigants suffer for laches on the part of advocates. This is fact creates breach of trust. That apart, in the present case all the plaintiffs have just did not bothered about their suits and even after such knowledge on 11/1/2002 which fact is not supported by any independent evidence. The notices of motion for restoration taken out on 28/1/2002 are just beyond the period of limitation. The delay belong not explained at all. I, therefore, do not find any of the plaintiffs deserving the condonation either of delay or of their laches and therefore reject all these notices of motion of restoration."

Though it is apparent that there was some error or lapse on the part of the clerk and to some extent the advocate in noting the dates of hearing, the learned Judge of the City Civil Court has put substantial blame on the plaintiffs.

6. The whole approach of the learned Judge of the City Civil Court, in my view, is wrong. It would not be appropriate to hold that it is the duty of litigant to attend Court and convey the adjourned date to his advocate. I fail to understand from where does the learned Judge finds such practice and procedure being followed in the City Civil Court or any other Court for that matter. On the contrary, it is a duty of an advocate engaged for conducting a cause on behalf of suitor to keep himself dully informed of the proceedings in the Court and be present when his case is called out. The litigant cannot be said to have any responsibility, legal or otherwise, after having engaged the services of an advocate and Vakalatnama is filed in his behalf, to attend the Court to take dates of the proceedings and convey them to his advocate, whether Vakalatnama sets out all the terms of the agreement between the advocate and his client or it may be that it may not set out all such terms. It is not the job of the client. In the trial Courts the party is expected to attend the court as and when his presence is required in the proceedings and/or whenever the party is informed by his lawyer to remain present. The principle laid down by the Supreme Court in Rafiq and Anr. v. Munshilal and Anr., , relied upon by Mr. Walawalkar, learned counsel for the appellants is sufficient enough for my guidance.. The Apex Court has categorically recorded that the obligation of the party is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. To go the Court to inquire as to what is happening in the court with regard to his matter and inform his lawyer is not part of this job. Relevant portion of paragraph No. 3 in the judgment of the Apex Court in Rafiz and Anr. (supra) reads thus:

"3. The disturbing feature of the case is that under our present adversely legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.

Again in Smt. Lachi Tewari and Ors. v. Director of Land Records and Ors., 1984 (Supp) Supreme court Cases 431, the Apex Court reiterated this very principle. It is thus clear that it is a duty of the lawyer to attend the proceedings and to take dates and not the job of his client. The principle laid down by the Apex Court squarely applies to the facts of this case. If the notices of motion for restoration of suits in the present case are not allowed, it is only the plaintiffs who would suffer and not the advocate who did not appear or the clerk who did not note the correct date of hearing in the diary. In the circumstances, the appellants-plaintiffs cannot be made to suffer merely because their chosen advocate defaulted..

7. In the result, the Appeals from order are allowed. The impugned orders dated 19th October, 2002 in all the three Appeals from order are quashed and set aside. Notices of motion stand allowed. Consequently, all three suits stand restored to file which the City Civil Court shall decide on merits.

Authenticated copy of this order may be made available to the parties.

Certified copy expedited.