Bombay High Court
4] Smt.Padminibai Sadashiv ... vs 5] Mr.V.B.Gala on 25 October, 2013
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 11 OF 2011
IN
SUIT NO. 4307 OF 1996
1] Smt.Ramabai Namdeo Gavand, )
Hindu Inhabitant of Bombay residing at )
Social Nagar, Jyoti Chawl, Dharavi, )
Sion (W), Mumbai - 400 022 )
2] Smt.Motubai Kashinath Bhoir, )
Hindu Inhabitant of Bombay residing at
ig )
Bhoir House, Balkum Pada No.3, Thane )
(W), District Thane. )
3] Smt.Raibai Dukka Gharat, )
Indian Inhabitant of Bombay residing at )
Gharat House, Kolshet, Taricha Pada, )
P.O.Sandoz District Thane )
4] Smt.Padminibai Sadashiv Taloskar, )
Hindu Inhabitant of Bombay residing at )
Taloskar House, Bhandup Village, )
Bhandup (W), Mumbai - 400 042 ) ..... Plaintiffs
VERSUS
1] Ravidra Pandharinath Ulavekar )
Indian Inhabitant of Bombay residing at )
Ulavekar House, Fakir Chowk, )
Bhandup Village, Bhandup (E), )
Mumbai 400 042 )
2] Kanchan Pandharinath Ulavekar )
Hindu Indian Inhabitant, residing at )
Ulekar House, Fakir Chowk, )
Bhandup Village, Bhandup (E), )
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3] Smt.Bhimabai Pandharinath Ulvekar )
Hindu Inhabitant of residing at )
Ulvekar House, Fakir Chowk, )
Bhandup Village, Bhandup (E), )
Mumbai - 400 042 )
4] Smt.Devkabai Baburao Patil )
Hindu inhabitant, residing at Kamal )
Store, Ekveera Cable Service, Bhandup )
Village, Bhandup (East), )
Mumbai - 400 042 )
5] Smt.Dhanabai Mukund Pawar, )
Hindu Inhabitant, residing at Pawar )
Mumbai - 400 042
House, Bhandup Village, Bhandup (E) )
)
6] Smt.Indubai Madhukar Patil, )
Hindu Inhabitant, residing at Patil House,)
Kopari Village, Thane (East), District )
Thane. )
7] Smt.Babybai Prabhakar Patil )
Hindu Inhabitant, residing at )
Ulvekar House, Fakir Chowk, Bhandup )
Village, Bhandup (E), Mumbai 400 042 )
8] Smt.Jaya Krishna Bhoir, )
Hindu Inhabitant, residing at Ulvekar )
House, Fakir Chowk, Bhandup Village, )
Bhandup (E), Mumbai - 400 042 )
9] Asha Pandharinath Ulvekar )
Hindu Inhabitant, residing at Ulvekar )
House, Fakir Chowk, Bhandup Village, )
Bhandup (E), Mumbai - 400 042 )
10] Kum.Prabha Pandarinath Ulvekar )
Hindu Inhabitant, residing at Ulvekar )
House, Fakir Chowk, Bhandup Village, )
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Bhandup (East), Mumbai - 400 042 )
11] Shri Dharmesh Jain )
of Bombay, Hindu Inhabitant having it's )
Office at Nirman Group of Companies )
Jawahar Talkies Compound, R.P.Road, )
Mulund (West), Mumbai 400 080 )
12] Nirman Group of Companies )
Jawahar Talkies Compound, R.P.Road, )
Mulund (West), Mumbai 400 080 )
13] Shri Shamji Damji Patel )
of Mumbai, Hindu Inhabitant, )
Vallabh Vihar Building, Next to Rajawadi)
Hospital, M.G.Road, Ghatkopar (East), )
Mumbai 400 077 )
14] M/s.Mayak Enterprises )
A Partnership Firm, Having its office )
at 267/71, Narsi Natha Street, )
Mumbai - 400 009. )
15] Mr.V.B.Gala )
A Partner of the Defendant No.14 )
267/71, Narsi Natha Street, )
Mumbai - 400 009. )
16] M/s.Rodridas Gaurdatta Pvt. Ltd. )
Mulund Goregaon Link Road, )
Mulund (West), Mumbai - 400 080 ) ..... Defendants
Mr.S.G.Deshmukh, i/b. Mr.G.T.Kanchanpurkar for the Applicant/Plaintiff.
Mr.N.K.Mudnaney for Defendant Nos. 1 to 10, 13.
Mr.Subodh Joshi, for Mr.S.R.Pandey Advocate on notice.
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CORAM : R.D. DHANUKA, J.
DATED : 25th OCTOBER, 2013
JUDGMENT
By this Notice of Motion, plaintiffs seek condonation of delay of 2626 days
in taking out this Notice of Motion and has applied for setting aside order dated
11th July, 2003 passed by the learned Prothonotary and Senior Master dismissing
the suit for default.
2.
Plaintiffs have filed this suit inter alia praying for declaration that each of
the plaintiff has 20% share and each of the defendant nos. 1 to 10 have 2% share in
the suit property described in Ex.'A-1' to the plaint. Plaintiffs had engaged
Mr.S.R.Pandey, advocate for filing the said suit. Vakalatnama was filed by the
learned advocate on behalf of the plaintiffs.
3. It is the case of the applicants (plaintiffs) that the applicants being illiterate
persons and could not understand the proceedings filed by them in this court. It is
alleged that the plaintiffs were always kept in dark by the learned advocate about
the proceedings in the suit. It is alleged that till the year 2009, the plaintiffs had
been told by their advocate that the matter would come up on board and he was
accordingly taking steps for the same. It is alleged that the plaintiffs always relied
upon the learned advocate for the purpose of filing a suit as well as for filing
proceedings in the suit. It is the case of the plaintiffs that plaintiffs had doubt
about the work of their advocate. They made an enquiry about the status of the
said suit in the office of this court and came to know that the suit has been
dismissed in the year 2003 for want of prosecution. Plaintiffs accordingly
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addressed a letter dated 3rd July, 2010 to the learned advocate asking for
explanation for not attending the proceedings in the said suit. It is the case of the
plaintiffs that since there was no reply from the learned advocate, the plaintiffs
sent another letter to their learned advocate at his residence. There was no reply to
the said letter also. The plaintiffs thereafter applied for certified copy of the
proceedings on 13th April, 2009 which were ready on 29 th July, 2009. The
plaintiffs were till then not aware of the dismissal of the suit.
4. In the month of June, 2010, plaintiffs with the help of one of their relatives
contacted their present advocate who advised the plaintiffs to adopt proceedings
for reviving of the suit. The plaintiffs did not receive certified copy of the order
passed by the learned Prothonotary and Senior Master. The plaintiffs thereafter
applied for certified copy of the order of dismissal on 11 th July, 2010. The said
copy was made available to the plaintiffs on 13 th August, 2010. The plaintiffs
thereafter filed this Notice of Motion for condonation of delay and for setting aside
the ex-parte order passed by this court.
5. Pursuant to the notice issued by this court, learned advocate who was
representing the plaintiffs filed affidavit in this proceedings.
6. Mr.Deshmukh, learned counsel appearing for the plaintiffs submit that the
plaintiffs being illiterate, totally relied upon the assistance given by the learned
advocate. No objection of the learned advocate was never received by the
plaintiffs. Learned counsel also invited attention of this court to the order passed
by this Court in Chamber Summons No. 1183 of 1998 on 22 nd July, 1999 which
was filed by the learned advocate appearing on behalf of the plaintiffs. When the
said Chamber Summons was heard by this Court on 22 nd July, 1999, the learned
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advocate representing the plaintiffs was absent. Though learned advocate was
absent, this court allowed the said Chamber Summons and directed the learned
advocate to amend the plaint. It is submitted that since the learned advocate did
not carry out amendment inspite of this court allowing Chamber Summons in his
absence, this court issued a notice to the learned advocate asking for explanation
on affidavit as to why he could not carry out amendment. Learned counsel
submits that the matter appeared before the learned Prothonotary and Senior
Master on four different dates when the learned advocate did not appear. The
learned Prothonotary and Senior Master therefore on 11 th July, 2003 dismissed the
said suit. It is submitted that in these circumstances, the plaintiffs cannot suffer
merely because their advocate did not appear in court. It is submitted that no
sooner plaintiffs came to know upon making enquiry in the office of this court,
proceedings are filed for condonation of delay and for setting aside ex-parte order.
It is submitted that there is no deliberate delay on the part of the plaintiffs to file
this Notice of Motion.
7. Learned counsel appearing on behalf of the earlier advocate on the other
hand placed reliance on the affidavit filed by the learned advocate in this
proceedings on 22nd February, 2012. Learned counsel submits that the learned
advocate was approached by one Mr.Adinath Dudhwadkar and Mr.Kambli.
Mr.Adinath Dudhwadkar was a Managing Clerk and Mr.Kambli, was an
employee of the this Court. It is submitted that the said Mr.Adinath Dudhwadkar
had asked the learned advocate to simply be on record and he would arrange
counsel to appear in the matter. It is submitted that Mr.Adinath Dudhwadkar was
looking after the said matter and he would keep in touch with the advocate
regarding the progress in the said suit. The said Mr.Adinath Dudhwadkar died on
20th October, 2001. It is submitted that affidavit filed by the constituted attorney
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Mr.Prakash M.Gharat had never contacted the learned advocate and had no
personal knowledge what is alleged in the affidavit in support. Learned counsel
submits that the said constituted attorney had also attended the meeting before the
Prothonotary and Senior Master on 8th January, 2002 and was aware of the
proceedings. Learned counsel submits that in the month of January/February
2002, the plaintiffs' then constituted attorney took his 'No Objection' on a printed
sheet of vakalatnama and he had handed over all the papers pertaining to the suit
which were in his possession. It is submitted that after signing such NOC and
handing over papers to the constituted attorney of the plaintiffs, the learned
advocate was retired of his obligations to the plaintiffs. It was responsibility of the
plaintiffs to attend and follow up the matter and not of the learned advocate. It is
submitted that the letter addressed on 17th July, 2010 was not replied by the
learned advocate since he had already taken discharge in the matter and he did not
think it necessary to reply the said letter. Learned counsel also submits that that
there is delay on the part of the plaintiffs to file this Notice of Motion which goes
to show that the plaintiffs are not diligent. Learned counsel submits that in any
event the learned advocate is not opposing or supporting this Notice of Motion but
prayed that the allegations levelled against the learned advocate in the affidavit
dated 3rd September, 2010 by the constituted attorney be set aside.
8. Mr.Mudnaney, learned counsel appearing for defendant nos. 1 to 10 and 13
submits that plaintiffs have not explained in the affidavit in support as to why the
plaintiffs could not take any steps earlier. It is submitted that allegations made by
the plaintiffs against their own advocate are unwarranted. Plaintiffs ought to have
taken proper step.
9. Mr. Mudnaney, learned counsel appearing for the defendant nos. 1 to 10
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and 13 placed reliance on the judgment of this court in case of Smt.Taramati
Bhagwandas Vithlani vs. Navjivan Gulab Gaikwad reported in (2007) AIHC 173.
It is submitted that this court has held that if the court has to take a view that the
applicant has not come to this court with clean hand and has made false and
incorrect statement in the affidavit and if court rendered a finding that such
allegations were false and incorrect to the knowledge of the applicant, court cannot
set aside ex-parte decree. Paragraphs 5, 7, 8 and 11 of the said judgment which are
relevant reads thus :-
5. The entire case of the Petitioner for the
setting aside of the ex parte decree was that the
Petitioner had engaged an advocate by the name
of Mr. Shinde to whom the papers had been
entrusted. The Petitioner claimed that he had faith
in the advocate and he had met the advocate on 4
to 5 occasions in 2002 when he was assured that
the matter was being taken care of and the
Petitioner would be informed when his presence
was required.
7. Courts are undoubtedly liberal in matters of
condonation of delay and particularly when a
party claims that an advocate has been negligent
in pursuing the proceedings. The judgment of the
Supreme Court in Rafiq v. Munshilal (AIR 1981
SC 1400) is an authority for the proposition that a
party should not be made to suffer for the inaction,
deliberate omission or misdemeanour of his agent.
In a subsequent decision in Salil Dutta v. T.M. &
M. C. Private Ltd. (JT 1993 (4) SC 528), the
Supreme Court while construing the earlier
judgment has observed as follows :
"The advocate is the agent of the party. His acts
and statements, made within the limits of authority
given to him, are the acts and statements of the
principal i.e. the party who engaged him. It is true
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that in certain situations, the Court may, in the
interest of justice, set aside a dismissal order or an
ex-parte decree notwithstanding the negligence
and/or misdemeanour of the advocate where it
finds that the client was an innocent litigant but
there is no such absolute rule that a party can
disown its advocate at any time and seek
relief. No such absolute immunity can be
recognised. Such an absolute rule would make the
working of the system extremely difficult. The
observations made in Rafiq must be understood in
the facts and circumstances of that case and cannot
be understood as an absolute proposition."
8. The Learned Trial Judge in the present case
observed that in support of the application for
setting aside the ex parte decree, a positively false
statement was made on behalf of the First
Respondent herein. In order to appreciate this
finding, it would be appropriate to advert to certain
statements made in the application moved on
behalf of the First Respondent, (Misc. Notice 396
of 2003) before the Trial Court. In paragraph 5 of
the application, the following statement was
made :
"The date of the passing of the Decree has come to
my knowledge through my present Advocate,
when he took the inspection of the papers in this
Hon. Court. It has been seen that the Notice before
Execution has also been issued, when the Decree
was passed on
23.10.2002. I was not served with any such Notice
before execution, and as such I was in complete
darkness about the happenings in the present Suit."
Then again in paragraph 9, it was averred as
follows :
"I say that I came to know about the passing of the
Exparte Decree against me when the Plaintiff came
to execute the Decree on 7.4.2003. Till that time, I
was under the bonafide belief that the suit is still
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pending and my previous Advocate is taking care
of the same."
11. In the present case, there is merit in the
contention of counsel appearing for the Petitioner
that both the Courts below having found that a
material part of the statement in the affidavit of the
First Respondent was false, it was manifestly
inappropriate for the Appellate Bench of the Small
Causes Court to interfere. The statement that the
First Respondent was not served with the notice
before execution and that he had no knowledge of
the passing of the ex parte decree until 7th April,
2003 is palpably untrue. This would cast a serious
doubt on the veracity of the explanation that the
First Respondent has blindly trusted his advocate
even during the pendency of the suit. This, it may
be noted is not a case where the litigant was a
villager situated outside the head quarters of the
Court which exercised jurisdiction, but a party
who resides in the very same city where both the
Court and his advocate are situated. In such a case,
the intervention of the Court at the behest of a
party who has come before the Court with a
positively false statement on affidavit is totally
uncalled for. In such matters Courts must be
vigilant to ensure that the liberal approach of the
Court is not abused by a party who has set up a
false case.
10. Mr.Mudnaney, learned counsel also submitted that under Order 3 Rule 4 of
Code of Civil Procedure 1908, the Vakalatnama of the learned advocate would
continue till application under Order 9 Rule 13 for setting aside ex-parte decree is
filed. It is submitted that the advocate now representing the plaintiffs thus could
not have filed vakalatnama. It is submitted that the Vakalatnama filed by the
present advocate is not found on record of this proceedings. Learned counsel
submits that it is possible that the advocate who has filed Vakalatnama now on
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behalf of the plaintiffs must have filed the same Vakalatnama on which no
objection was rendered by the earlier advocate.
11. On perusal of the plaint and in particular the affirmation and verification of
the plaint, it is clear that all the four plaintiffs had put their thumb impression in
the plaint as well as on the vakalatnama. The plaintiff no.4 who had verified the
plaint had also put her thumb impression and was interpreted by the interpreter of
this court in Marathi. When the plaint was amended for the first time, plaintiff
no.4 once again put her thumb impression on the plaint. The amended plaint was
also explained to plaintiff no.4 by interpreter of this court in Marathi. Second
amendment was carried out and was redeclared by the constituted attorney of the
plaintiffs who had signed in English. It is the case of the plaintiffs that all the
plaintiffs are illiterate and were not aware of the court proceedings and were fully
dependent on their advocate.
12. On perusal of the affidavit filed by the learned advocate, it appears that the
case of the learned advocate is that once he had already signed the printed
vakalatnama giving his NOC and had handed over the papers to the client, his role
as an advocate was over and client himself has to appear in the proceedings or to
make alternate arrangement. This allegation of the learned advocate is disputed by
the plaintiffs.
13. On perusal of the affidavit of the learned advocate it is clear that it is not the
case of the learned advocate that any acknowledgement of the plaintiffs was taken
by the learned advocate while handing over such NOC or papers to the client. This
matter had appeared before the Prothonotary and Senior Master on four different
dates when none appeared for the plaintiffs, the learned Prothonotary and Senior
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Master has dismissed the suit for want of prosecution.
14. Rule 186 to 188 of Bombay High Court (O.S.) Rules read thus :-
R.186 Duration of Advocate's retainer.- An
Advocate on the record of a suit or matter shall
continue to represent his client until an order of
discharge is obtained or until all proceedings in
the suit or matter are ended so far as regards the
client.
All proceedings referred to in Order III,
rule 4(3) of the Code of Civil Procedure shall be
deemed to be proceedings in the suit or matter.
R.187 Client's application for discharge or
change of his advocate.- When a party applies
for an order for discharge or for change of his
Advocate on record in a suit, matter or appeal, he
shall unless otherwise ordered, give two clear
days notice of his application to such Advocate
and the facts of such notice having been served
shall be stated in the affidavit in support of the
order.
R. 188 Advocate's application for his
discharge.- When an Advocate on record in a
suit, matter or appeal applies for an order for his
discharge, he shall, unless otherwise ordered, give
two clear days' notice of his application to his
client and the fact of such notice having been
served shall be stated in the affidavit in support of
the order.
15. On perusal of Rules 186 to 188 of the Bombay High Court (O.S.) Rules read
with Order 3 Rule 4 Sub Rule 3 of Code of Civil Procedure, it is clear that
procedure is prescribed for a client or an advocate to take discharge in the matter.
Rule 186 provides that the advocate on the record of the suit or matter shall
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continue to represent his client until an order of discharge is obtained or until all
proceedings in the suit or matter are ended so far as regards the client. Rule 187
provides that when a party applies for an order for discharge or for change of his
advocate on record in a suit, matter or appeal, he shall unless otherwise ordered,
give two clear days notice of his application to such advocate and the facts of such
notice having been served shall be stated in the affidavit in support of the order.
Under Rule 188 if the advocate seeks to take discharge in the matter, he also has to
give two days clear notice of his application to his client and shall disclose such
facts in the affidavit in support of the order. This Court has deputed officer for
hearing such application on the part of the client or advocate as the case may be. It
is not the case of the learned advocate or the defendants that any such application
was filed by the learned advocate or by the plaintiffs to take discharge in the
matter. Learned advocate could not produce any acknowledgement showing
receipt of 'No Objection' and/or return of papers.
16. On conjoint reading of Rules 186 to 189 read with order 3 Rule 4(3) of the
Code of Civil Procedure, it is clear that even for making an application for setting
aside ex-parte decree, vakalatnama of the advocate continues. In my view, merely
because an endorsement is made on the vakalatnama by an advocate giving his no
objection, his role is as an advocate in the matter is not over. Advocate can be
discharged in the mode and manner prescribed under section 186 to 188 of the
Bombay High Court (OS) Rule unless the new advocate engaged by his client files
his vakalatnama.
17. It may happen that the new advocate may not file vakalatnama or the
learned advocate or his client who has taken NOC from his advocate may not
engage a new advocate. In such an event, learned advocate who gives NOC on
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vakalatnama has to make sure that the vakalatnama of new advocate is filed within
a reasonable time and if not filed then in such situation he shall make an
application himself for discharge under Rule 188 of the Bombay High Court (OS)
Rules. Such advocate may ascertain the position from the High Court website and
shall take appropriate steps.
18. As far as judgment of this court in case of Smt.Taramati Bhagwandas
Vithlani (supra) relied upon by Mr.Mundaney for some of the defendants is
concerned, this court has refused to set aside the ex-parte order in writ petition
filed by the defendants and has set aside the order passed by the Trial Court on the
ground that though the learned Trial Judge as well as Appellate Judge had rendered
a finding that all these statements made by the applicant in application for setting
aside ex-parte order were incorrect, the appellate bench had set aside the ex-parte
order inspite of such finding. This court has also adverted to the judgment of the
Supreme Court inc case of Rafiq v.Munshilal (AIR 1981 SC 1400) and in case of
Salil Dutta vs.T.M.& M.C. Private Ltd. (JT 1993 (4) SC 528).
19. I am not making any comment on the allegations made by the plaintiffs in
affidavit in support that the learned advocate had assured him of good result. Since
the learned advocate had not taken proper discharge in the matter, his vakalatnama
continued. Since his name continued to appear on board, in my view, learned
advocate ought to have appeared before Prothonotary and Senior Master and ought
to have brought it to the notice of the learned officer that he had already given no
objection in favour of the client and he would file appropriate application for
discharge. In my view, on perusal of the rules of this Court as aforesaid, authority
of the learned advocate continues till he was discharged in the mode and manner
prescribed under the High Court Rules. In my view, the plaintiffs cannot suffer
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merely because his advocate did not apply for discharge and did not appear in the
proceedings. The plaintiffs being illiterate as is emerged from the verification
clause and averments made in the affidavit in support were rightly expecting their
advocate to inform them about the progress in the matter.
20. Defendants have not filed affidavit in reply though served.
21. I am therefore of the view that the plaintiffs have made out a case for setting
aside the order passed by the learned Prothonotary and Senior Master and for
restoration of the suit. I, therefore, pass following order :-
(a) Notice of Motion is made absolute in terms of
prayers (a) and (b).
(b) Suit is restored to file.
(c) Considering the facts of this case, hearing of the
suit is expedited. Place the matter on board for
directions on 20th November, 2013.
(d) No order as to costs.
[R.D. DHANUKA, J.]
