Prema Janardan Dhuru Since Decd. ... vs M/S Agarwal Builders And ...
2022 Latest Caselaw 12847 Bom

                                                                                29-sa-194-2021.doc
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           Digitally signed
                                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
PALLAVI
MAHENDRA
           by PALLAVI
           MAHENDRA
           WARGAONKAR
                                                 CIVIL APPELLATE JURISDICTION
WARGAONKAR Date:
           2022.12.15
           18:21:46

                                                 SECOND APPEAL NO.194 OF 2021
           +0530




                                                            WITH
                                              INTERIM APPLICATION NO.2091 OF 2019

                              Prema Janardan Dhuru since deceased
                              through legal heirs
                              Leena Manek Chimegawe                              ...Appellant
                                  Versus
                              M/s. Agarwal Builders and Developers
                              through its partner Shri Atul Agarwal              ...Respondents


                              Mr. Rajesh Datar and Mr. Pralhad Paranjape, i/b. Mr. Manish Kelkar,
                              for the Appellant.

                              Mr. Vishal Kanade, Ms. Kausar Banatwala with Yash Dhakad, i/b.
                              Mr. Tushar Goradia, for the Respondent.

                              Mrs. Leena Manek Chimegawe, Appellant present in person.

                              Mr. Manek Chimegawe, husband of Appellant present in person.


                                                      CORAM : MADHAV J. JAMDAR, J.

DATED : 12th DECEMBER 2022

P.C. :

1. At 2.40 p.m.: This Second Appeal was heard in the frst

session from about 1:10 p.m. to 1:30 p.m. i.e. for about 20

minutes i.e. upto the lunch break. The matter was part-heard

and when the Court resumed the matter in the afternoon

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session, Mrs. Leena Manek Chimegawe, Appellant and her

husband Manek Chimegawe requested for adjournment on the

ground that they want to engage some other Advocate. I

rejected the said request for the following reasons:

(i) The Bombay High Court framed rules by exercising

powers under Section 34(1) of the Advocates Act, 1961.

The said rules are to be found in Schedule VII of the

Appellate Side rules and are very relevant for deciding

this request made by the Appellant.

(ii) Rule 1 (a) provides that "Advocate" shall include a

frm of Advocates. Rule 1(b) provides that "Court" shall

mean the High Court of Judicature at Bombay and the

Courts subordinate thereto.

(iii) Sub-Rule (4) and Sub-Rule (5) of Rule 8 of said

Rules are very signifcant and the same read as under:

"8(4) When an Advocate who has fled a Vakalatnama for a party wishes to withdraw his appearance he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the Court. Leave of the Court to withdraw appearance may also be applied for if the client has instructed the Advocate to that effect.

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The Advocate shall fle a note in writing requesting the Court for permission to withdraw appearance and shall also fle along with the note the letter of the client instructing him to withdraw his appearance or a copy of the intimation given to the client as above together with its written acknowledgment by the client. The Court if it is satisfed that no inconvenience is likely to be caused to the Court or the client may permit the Advocate to withdraw his appearance and while permitting the Advocate to do so may also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties.

8(5) A party who wishes to discharge the Advocate engaged by him may apply to the Court for an order of discharge by following a similar procedure and the Court if it is satisfed may pass order discharging the Advocate and while doing so impose such terms and conditions as it may deem proper."

Thus, it is clear that Sub-Rule (4) of Rule 8 gives power to

the Court to reject request for discharge if it is satisfed that by

such request inconvenience is likely to be caused to the Court.

In this matter, the matter is part-heard and the same has been

argued for about 20 minutes and in the midst of the hearing

this request is made. Thus, I am rejecting the said request.

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2. It is also signifcant to note that, apart from the

inconvenience of the Court, this also affects dignity of an

Advocate who appears in the matter and making his

submissions. Advocates are the offcers of the Court. The

assistance rendered by Advocates to the Court plays very

signifcant role in dispensation of justice. An Advocate has duty

to the Court, duty to the client, duty to opponent and duty to

colleagues. It is the duty of an Advocate fearlessly to uphold the

interest of his client by all fair and honourable means without

regard to any unpleasant consequences to himself. However, it

is required to be noted that an Advocate is not mouthpiece of

his client and he has to argue the case fearlessly in the best

interest of his client. When Mr. Datar, learned Advocate is

advancing submissions in the best interest of his client, in the

midst of hearing request made by the Appellant is totally

uncalled for. Therefore, this request is rejected. However, after

arguments are concluded, I will grant liberty to the Appellant

to fle her written submissions within a period of one week from

today and thereafter I will pass the appropriate order.

3. (At 3.25 p.m.): After above order is passed, Mr. Datar

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continued with his submissions as per the direction of this

Court. He pointed out various factual aspects and also pointed

out the various terms and conditions of both the agreements

dated 2nd November, 1993 at Exh. 26 and Exh. 27 respectively.

He pointed out relevant fndings recorded by the learned Trial

Court and learned First Appellate Court. He also submitted

about the substantial questions of law involved in this Second

Appeal. After Mr. Datar, learned Advocate completed his

submissions, I have heard Mr. Kanade, learned counsel

appearing for the Respondent. Mr. Kanade also pointed out

various clauses of both the aforesaid agreements and also he

relied on various fndings recorded by the learned First

Appellate Court.

4. The Second Appeal is admitted on the following

substantial questions of law:

i. Whether the learned First Appellate Court has properly interpreted the agreement dated 2 nd November 1993 (Exhibit-26) and the second agreement dated 2nd November 1993 (Exhibit-27)?

ii. Whether effect of 2nd agreement dated 2nd November, 1993 (Exh.27) is to completely nullify the frst agreement dated 2nd November, 1993 (Exh.26)?

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iii. Whether it is necessary to read harmoniously the terms and conditions of both the agreements dated 2nd November, 1993 at Exh. 26 and Exh. 27 respectively?

iv. Whether the impugned Judgment and Decree of the learned First Appellate Court is contrary to the oral evidence of the Appellant and the Respondent?

5. By order passed at 2.40 p.m., I have granted liberty to the

Appellant to fle written submissions, however, since I am

admitting the Second Appeal, the said written submissions are

not required at this stage.

[MADHAV J. JAMDAR, J.]