Bombay High Court
Savita vs Zingaraji on 3 December, 2013
Bench: S.S. Shinde
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.
3 wp4712.09
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
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.
6 wp4712.09
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
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
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
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
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
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
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
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
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
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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.
16 wp4712.09
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
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
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.
19 wp4712.09
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.
20 wp4712.09
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
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
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
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
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 :
............. ............
24 wp4712.09
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
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
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
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
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.
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
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 :-
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
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
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
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
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 .
35 wp4712.09
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
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 .
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
