Notice of Motion No. 457 of 2007,Notice of Motion No. 41 of 2008,Review Petition No. 34 of 2001,Writ Petition No. 956 of 2001

4th April, 2008

Petitioner Counsel: Mr. Y. V. DIVEKAR,M/s. Divekar & Co.
Respondent Counsel: Mr. D. D. MADON,Mr. S. A. SAWANT, Mr. H. V. KODE,Mr. PRADEEP JADHAV,Mr. J. G. REDDY
Other Counsel: Mr. N. V. WALAWALKAR, Ms. A. K. SAVLA

Cases Cited:
Byram Pestonji Gariwala Vs. Union Bank of India, AIR 1991 SC 2234 [Para 12]

JUDGMENT

SWATANTER KUMAR, C.J.:- By way of this Notice of Motion, it is prayed that the order dated 14th December, 2001 passed in the above Review Petition No.34 of 2001 in Writ Petition No.956 of 2001 be recalled and ordered to be set aside and the petition be ordered to be heard on merits.

2. In the above Notice of Motion No.41 of 2008 the petitioner has prayed that the respondents, their officers, servants, agents and employees be directed to reconstruct the structures demolished by the respondents on 16.1.2008 and restore the possession of the said land and to restrain them from further executing the said order dated 14.12.2001 and an order/letter dated 9th August, 2007.

3. All these matters were contested on behalf of the respondent No.4 who vehemently opposed the prayers made therein. We may refer to the necessary facts giving rise to these matters which are pending in this court for quite some time.

4. In the writ petition, a declaration was sought to the effect that on the lands covered by Town Planning Schemes in Brihan Mumbai, the S.R.A. does not have jurisdiction to implement a Slum Rehabilitation Scheme which is at variance with the Town Planning Scheme and the Development Plan; that the scheme in question cannot be implemented on the said plot pursuant to the approval granted on 31st May, 1997; that Plot No.97 TPS II Mahim be declared as an agricultural land and that it is not covered under the provisions of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 and that, therefore, the scheme cannot be implemented. The petitioner also prayed for other reliefs including the relief of injunction against the respondents from evicting him from the property in question and for setting aside the appointment of respondent No.4 as the developer of final plot Nos.96-A, 96-B and 97 TPS-II.

5. This writ petition was dismissed by an order dated 27th April, 2001 to which one of us (S. J. Vazifdar, J.) was a party, for the reasons recorded in the judgment of the same date in Writ Petition No.2891 of 1999. This order attained finality between the parties. The petitioner had challenged the order by filing a Petition for Special Leave to Appeal in the Supreme Court which came to be disposed of vide order dated 10th August, 2001 wherein liberty was granted to the petitioner to file a proper application before the High Court, if he was of the view that the contentions raised by him were not dealt with by the High Court. In furtherance to this, the petitioner had filed the above Review Petition No.34 of 2001 before this court.

6. During the pendency of the review petition, the Court Commissioner as per the directions issued by this court vide order dated 3rd October, 2001, visited the premises in question and made a report with regard to the structure, areas etc.

7. The above review petition was finally disposed of vide the said order dated 14th December, 2001. This order was passed by consent. The said order reads as under:

"Heard parties.

Mr. Sawant learned counsel for the developer i.e. Respondent No.4 in Review Petition No.34 and respondent No.7 in Review Petition No.35, after taking instructions from Shri. Sharadchandra M. Kulkarni, the partner of the developer firm, stated that the developer is agreeable to allot to the petitioner Valji M. Patel three tenements of 225 sq.ft. (carpet) free of costs and one tenement of 225 sq.ft. *carpet) subject to payment of 50% cost of construction quantified at Rs.1,25,000/- in the rehabilitation building to be constructed under the SRA scheme. Mr. Sawant stated that the petitioner will be accommodated in building No.1B which is to be constructed immediately and all four tenements will be on the same floor adjacent to each other.

The learned counsel appearing for the petitioner stated that the offer given by the developer is acceptable to the petitioner. The petitioner who is present in court agrees and undertakes to join the scheme. He also undertakes to vacate the existing structures in their possession within two weeks from the date of handing over of possession of 4 tenements in the new building and abide by the terms and conditions of the scheme.

Review Petitions are disposed of accordingly. Liberty to apply if need arises."

8. The above Notice of Motion No.457 of 2007 was filed by the applicants praying for an order setting aside the said order dated 14th December, 2001 and Notice of Motion No.41 of 2008 was filed for certain interim orders we have already referred to.

9. In the backdrop of these facts, firstly, the court has to consider the maintainability of such applications and the conduct of the petitioner.

10. The order dated 14.12.2001 was passed by consent of the counsel for the parties and is, therefore, binding upon them. With the exception of fraud or some misrepresentation, orders passed by consent of the parties could hardly be reviewed by the court. As a normal rule of law, an order passed by consent can only be varied with the consent of the parties and not by the court.

11. Mr. Divekar submitted that the order dated 14th December, 2001 is not binding on the petitioner as the consent recorded therein of the parties is not signed by them and is, therefore, not in accordance with the provisions of the Civil Procedure Code.

12. We will assume that the provisions of the Civil Procedure Code apply to the present proceedings. Where counsel has been engaged and he in the presence of the party/parties or even otherwise enters into a settlement, the same will bind the parties with rare exceptions apart. There is no pleading of fraud or misrepresentation in the present case. The counsel appearing, applying and acting on behalf of a party and entering into a settlement would bind the parties except for the exceptions carved out in law. Reference in this regard can be made to the judgment of the Supreme Court in the case of Byram Pestonji Gariwala Vs. Union Bank of India and others, AIR 1991 SC 2234 wherein the court held as under :

"39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in Court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.

40. Accordingly, we are of the view that the words 'in writing and signed by the parties', inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of O.3, R.1, C.P.C.

"any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by the pleader, appearing, applying or acting as the case may be, on his behalf:

Provided that any such appearance shall, if the Court so directs, be made by the party in person".

...............

44. The consent decree made on 18.6.1984 remained unchallenged. None questioned it. The appellant never raised any doubt as to its validity or genuineness. He had no case that the decree was vitiated by fraud or misrepresentation or his counsel lacked authority to enter into a compromise on his behalf. Nevertheless, after six years he questioned its validity by means of chamber summons. This was an unsuccessful challenge by reason of delay, estoppel or res judicata, and was rightly so held by the High Court."

13. Mr. Divekar then reiterated what is stated in paragraphs 12, 13 and 14 of the affidavit in support of Notice of Motion No.457 of 2007 which read as under :-

"12. I may state that till 14.12.2001 when the order was passed, there was no offer for settlement either by the builder or by any one else. The so called settlement about my undertaking as recorded in the said order was supposed to have done on the spot in the chamber. I had not agreed to either in writing or orally to any of the said terms and conditions. As aforesaid, I am hard of hearing being an aged person. I have a medical certificate to the effect that I have high blateralloss and I am hard of hearing. Hereto annexed and marked Exhibit "K" is a copy of the medical certificate.

13. I may state that when the hearing was going on and the order was being dictated, I shouted from a long distance in the chamber that I was not knowing what was going on. The Hon'ble Court threatened that I would be asked to leave the court through a peon. Even after the order was passed, my advocate ever explained what was happening and what had happened. He only told me that my interest was fully protected, and I will not be disturbed of my possession.

14. Since from 2001, i.e. From the date of passing the order, I was not disturbed of the possession of my structure and the agricultural land, I believed my advocate's word that everything was in order and I will not be disturbed. Only when I received a copy of the letter dt.9.8.2007 from the Asst. Municipal Commissioner and when I got it interpreted and explained from another advocate, I came to know about the illegalities. I contacted my advocate Mr. Tated after I received the order and he told me that nothing could be done in the matter."

14. Now, we may deal with the conduct of the petitioner himself. The allegations made in the above paragraphs indicate the callousness and irresponsible attitude with which the petitioner has acted. He has made serious allegations against his advocate. It may be noticed that Notice of Motion No.457 of 2007 has been filed after changing the advocate. No letter or affidavit of the earlier advocate has been placed on record to substantiate the allegations made in this affidavit. For the reasons best known to the applicant/petitioner, he has not even impleaded the said counsel as a respondent.

15. To explain the delay of six years in filing the Notices of Motion, Mr. Divekar relied upon paragraph 14 of the said affidavit.

16. If what has been averred in paragraph 12 of the affidavit is correct, there can be no justification whatsoever for the petitioner having filed the above Notices of Motion after a lapse of six years. The order was passed by the Division Bench in Review Petition No.34 of 2001 on 14th December, 2001 while the application was filed in the Registry of this court on 1st September, 2007. This inordinate delay in filing of this application is not satisfactorily explained. The mere fact that no action was taken by the other side till recently would be no ground for the applicant/petitioner to sleep over the remedy available to him for such a long period. It is difficult to accept the serious allegations made against the advocate in the facts of this case and that too in the absence of the advocate himself. He had chosen to settle the matter and respondent No.4 had taken various actions and had written letters to the petitioner during the intervening period. Rather than taking appropriate steps if the allegations were true, the applicant/petitioner despite knowing the contents of the order, waited for all this time.

17. It is also interesting to note that the application is not accompanied by a proper application for condonation of delay. Except making a vague plea that the delay in filing the notice of motion be condoned, no reason much less a plausible ground has been stated by the applicant anywhere in the application, the affidavits filed in support thereof and/or even the documents placed on record.

18. The learned counsel appearing for the applicant lastly also argued that the settlement recorded in the order dated 14th December, 2001 is inequitable as the petitioner was in possession of a large property and would not settle for three flats. This is a matter which cannot be gone into by the court at this stage. Admittedly, even according to the applicant/petitioner, not only he himself but his son was also present in the court when the order dated 14th December, 2001 came to be passed.

19. There is no justification of any nature whatsoever for the applicant not to have filed an appropriate application the very next day, after revoking the authority of the counsel who appeared for him. Even if some remedy was available to the applicant, he on his own accord has waived the same and has permitted the things to change. It was contended on behalf of the respondent No.4 that the alleged structure has been demolished in compliance of the order dated 14th December, 2001 and the construction under the scheme of development has already started. It is expected of every litigant to take recourse to the remedy available to him in law as expeditiously as possible and not to wait and watch as to when the other party would act. It is not that respondent No.4 started acting on the order dated 14th December, 2001 recently. The said respondent, (sic) it is argued that the applicant himself had written to various authorities as mentioned in the affidavit.

20. In the present case, the grounds stated for recalling the order dated 14th December, 2001 are ex facie falicious and without any basis. The fact of the matter as reflected from the record is that the petitioner ought to have blamed none else except himself. The language used in the affidavit to say the least is improper. He has adopted no collateral action to justify such a stand taken before the court. Respondent No.4 has clearly stated that he would discharge all his obligations in terms of the order dated 14th December, 2001 and would not prejudice the interest of the applicant/petitioner.

21. For the reasons afore-referred, we have no hesitation in holding that the above Notices of Motion are nothing but an abuse of process of law and are not even maintainable. Thus, we dismiss the Notice of Motion No.457 of 2007 with no order as to costs. Resultantly, Notice of Motion No.41 of 2008 does not survive for consideration and is dismissed as such.

Notice of Motion dismissed.