Bombay High Court

Annarao Govindrao Patil vs Ramrao Tukaram Kanwate on 7 August, 2017

Bench: S.P. Deshmukh

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 drp
         IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    BENCH AT AURANGABAD

                     WRIT PETITION NO.4322 OF 2016

 Annarao s/o Govindrao Patil                                  PETITIONER
 Age - 57 years, Occ - Advocacy
 R/o Latur, Taluka and District - Latur

          VERSUS

 Rukamaji s/o Bhawani Jondhale                             RESPONDENT
 Age - 75 years, Occ - Agriculture
 R/o Dhanora (Bk), Taluka - Ahmedpur,
 District - Latur

                                 WITH
                     WRIT PETITION NO.4323 OF 2016

 Annarao s/o Govindrao Patil                                  PETITIONER
 Age - 57 years, Occ - Advocacy
 R/o Latur, Taluka and District - Latur

          VERSUS

 Ramrao s/o Tukaram Kanwate                         RESPONDENT
 Age - 65 years, Occ - Agriculture
 R/o Dhanora (Bk), Taluka - Ahmedpur,
 District - Latur
                               .......

Mrs. P.G.Sontakke h/f Mr. G. K. Sontakke, Advocate for petitioner Mr. N. P. Patil (Jamalpurkar), Advocate for the respondents .......

[CORAM : SUNIL P. DESHMUKH, J.] DATE : 7th AUGUST, 2017

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard learned

advocates for the parties finally by consent.

2. Present petitions arise from orders dated 31 st March, 2016

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passed on Exhibit-22 in Special Civil Suit No. 78 of 2015 and on

Exhibit-23 in Special Civil Suit No.79 of 2015, the applications

filed by respondents - defendants seeking vacation of status quo

order passed by court, in respective suits.

3 Petitioner is a practising advocate. According to the

petitioner he had been engaged by respondents to represent

them in Land Acquisition References No. 1641 of 2001 and 1637

of 2001 and Special Darkhasts No. 32 of 2015 and 36 of 2015,

respectively.

3. The suits bearing Special Civil Suits No. 78 of 2015 and 79

of 2015 by petitioner concern recovery of unpaid professional

fees and expenses. In both the suits, applications Exhibit-5 had

been filed seeking attachment of decretal amounts in land

acquisition references No. 1641 of 2001 and 1637 of 2001 to

the extent of claim of unpaid professional fees and expenses,

invoking Order XXXVIII, Rule 5 of the Civil Procedure Code.

4. Applications Exhibit-22 and Exhibit-23 had been moved in

respective suits by defendants seeking vacation of status quo

order, which had restrained present respondents from

withdrawing deposited amount of land acquisition compensation.

Applications Exhibit-22 and 23 refer to that plaintiff is prolonging

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hearing of the matters and is procrastinating giving evidence and

keeping respondents away from withdrawal of payment of

legitimate land acquisition compensation deposited by acquiring

authority.

5. The applications - Exhibits 22 and 23 in respective suits

were opposed by present petitioner - plaintiff referring to that

order of status quo had been passed after hearing the parties

and the amount involved under various heads is properly

charged as shown in the claim made in the suits and the

respondents - claimants have no other property to secure

amounts claimed under the suits. The amounts deposited in

Special Darkahsts No. 32 of 2015 and No.36 of 2015 are the

only property in said amounts available with the defendants.

6. The petitioner contends that while suits for recovery of

unpaid professional fees and expenses were pending,

applications Exhibits-15 and 14 in the two suits had been moved

by respondents raising a question of jurisdiction of court

pursuant to section 9A of the Civil Procedure Code (Bombay

Amendment) and status quo order has been passed after

hearing parties concerned. Issue in pursuance of applications has

been framed and is pending hearing where plaintiff has led

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substantial evidence and in the circumstances, it is imperative

that said question be decided first before passing order of

vacating status quo.

7. Learned advocate for the petitioner during the course of

hearing refers to orders dated 21 st September, 2015 at Exhibit-E

to the petitions, under which status quo had been directed to be

maintained, further referring to that this was during pendency of

applications Exhibits - 15 and 14 in respective suits whereunder

framing of preliminary issue with regard to jurisdiction had been

requested for at the instance of present respondents. Thus, a

distinction is sought to be made in respect of order being relied

on by learned advocate for the respondents in writ petition No.

9591 of 2015.

8. It is submitted that in the face of such a situation as

aforesaid, it is expedient that order of status quo, which has

been operating from a long time, which had been passed after

hearing parties, to let it continue to operate till issue of

jurisdiction is decided.

9. It has been referred to that while applications Exhibit-5

have been pending, orders on the same ought to have been

passed allowing the same, passing an order of attachment

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before judgment. Trial court had passed orders on applications

Exhibits - 15 and 14 and the matters had been referred for

mediation. While the petitioner had been prosecuting mediation,

present respondents had avoided to appear in mediation and

under the circumstances, court had passed orders directing the

defendants to maintain status quo in respect of suit amounts.

According to learned advocate, applications Exhibit-22 and

Exhibit-23 could not have been entertained, for, there were no

circumstances which had occurred subsequent to order of status

quo had been passed which impelled vacation of order of status

quo at the instance of defendants and particularly while Exhibits

15 and 14 in respective suits were being duly prosecuted.

10. Countering aforesaid submissions, Mr. N. P. Patil -

Jamalpurkar appearing on behalf of the respondents submits

that only an amount of Rs.15,000/- was agreed towards

professional fees and there had been no agreement so far as the

amounts as referred to in respect of either professional fees or

amounts under other heads. There is neither any substance in

the claim being made nor there is evidence produced in respect

of the same. According to learned advocate, unnecessarily

amounts of the respondents who are agriculturists have been

detained under orders passed in suits and the respondents in the

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process are getting severely affected. He submits that intention

underlying the procrastination of proceedings is to vex, tire out

respondents and to make them yield to unlawful demands of

plaintiff. He submits that there is no justification for claiming

amount of professional fees over and above Rs.15,000/-, which

had been agreed upon.

11. He further refers to that there are various other litigations

initiated by concerned advocate - present petitioner, making

similar claims as in the present matters and in all the

proceedings, applications Exhibit-5 had been rejected. He

particularly refers to order passed in Special Darkhasts No. 131

of 2009 and 37 of 2015 in respect of Land Acquisition Reference

No. 1625 of 2001 and contends that plaintiff, who is also

petitioner in present matter, had been before this court in writ

petition No. 9591 of 2015 aggrieved by order of trial court on

Exhibit-5, making similar request pursuant to Order XXXVIII,

Rule 5 of the Civil Procedure Code, however said writ petition

has been rejected by this court. He submits that in the facts of

the present case, which are almost identical, with only difference

that applications Exhibit-5 therein had been rejected and here in

present matters, parties had been sent for mediation by passing

order on applications Exhibits-15 and 14 moved by present

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respondents questioning jurisdiction of the court wherein suits

have been instituted by present petitioner-plaintiff. Preliminary

issue accordingly had been framed, however, its hearing had

been getting procrastinated and in the circumstances, the

respondents were getting hit hard for want of withdrawal of

Rs.7,38,175/- and Rs.6,78,965/- in respective petitions, which

form a large chunk of land acquisition compensation. Demand

towards professional fees and other expenses had been

excruciating and exorbitant looking at the matter from any angle

and in the circumstances, since status quo had been operating,

applications Exhibit-22 and Exhibit-23 had been moved in

respective suits by the defendants.

12. He submits that while applications Exhibit-5 in other suits

in similar circumstances being rejected, order impugned vacating

status quo order can hardly be imputed any error, illegality or

invalidity. He submits that decision in writ petition No. 9591 of

2015 contains elaborate discussion on the legal position involved

in the matter, particularly, from paragraphs No. 18 onwards. He

puts emphasis on paragraph No. 23 of said order contending that

in the same, the Apex Court's judgment in the case of "Raman

Tech and Process Engineering Company V/s Solanki Trades" reported in 2008

(3) Mh.L.J. 6 has been discussed and relevant extract had been

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reproduced thereunder and this high court thereupon had

observed under paragraph No. 24 as under:

" 24. It, therefore, has to be borne in mind that Order 38 Rule 5 is not to be exercised mechanically and casually. It is that power which has to be exercised sparingly and so to say in the rarest of rare case where the intended object of the Defendant is prima facie visible in frustrating the claim of the Plaintiff. In the instant case, besides the admission of the Respondent that an amount of Rs.15,000/- is to be paid by way of professional fees, the details put forth by the Petitioner / Plaintiff below paragraph 11 in the suit, prima facie appear to be a mere statistical data, unsupported and unsubstantiated by any document. "

13. Taking into account that the petitioner has made claims of

amounts under various heads as are appearing in the suits, as

on the date, as observed by Hon'ble learned single judge in

decision in writ petition No. 9591 of 2015 that it is merely a

statistical data unsupported and unsubstantiated by any

document and that passing order pursuant to Order XXXVIII,

Rule 5 of the Civil Procedure Code is not a mechanical and casual

process and such powers have to be exercised sparingly in rarest

of rare cases wherein object of the defendant prima facie is of

frustrating claim of plaintiff. Here in the present matters,

respondents do not deny that the petitioner had been engaged

as their advocate, however, it has been contended that