2014(7) ALL MR 267
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

R.D. DHANUKA, J.

Smt. Ramabai Namdeo Gavand & Ors. Vs. Ravidra Pandharinath Ulavekar & Ors.

Notice of Motion No.11 of 2011,Suit No.4307 of 1996

25th October, 2013

Petitioner Counsel: Mr. S.G. DESHMUKH, i/b. Mr. G.T. KANCHANPURKAR
Respondent Counsel: Mr. N.K. MUDNANEY, Mr. SUBODH JOSHI, for Mr.S.R. PANDEY

Bombay High Court (Original Side) Rules (1980), Rr.186, 187, 188 - Civil P.C. (1908), O.3 R.4(3) - Discharge or change of advocate - Procedure - Merely because an endorsement is made on vakalatnama by an advocate giving his no objection, his role as an advocate in matter is not over - Advocate can be discharged in mode and manner prescribed u/Rr. 186 to 188, unless new advocate engaged by his client files his vakalatnama. (Paras 16, 17)

Cases Cited:
Smt.Taramati Bhagwandas Vithlani Vs. Navjivan Gulab Gaikwad, (2007) AIHC 173 [Para 9,18]
Rafiq Vs. Munshilal, AIR 1981 SC 1400 [Para 18]
Salil Dutta Vs. T.M.& M.C. Private Ltd., JT 1993 (4) SC 528 [Para 18]


JUDGMENT

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 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 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 29th 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 11th July, 2010. The said copy was made available to the plaintiffs on 13th 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 22nd 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 22nd July, 1999, the learned 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 11th 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 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.

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.

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 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 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 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 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.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.

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 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 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 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.

Ordered accordingly.