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Precaution to be taken by court while permitting Advocate to withdraw his Vakalatnama

IN THE HIGH COURT OF BOMBAY
(NAGPUR BENCH)

Second Appeal No. 175 of 2016

Decided On: 13.04.2018

Rameshkumar Vyankatswami Poona
Vs.
Swami Vivekanand Cooperative Housing Society and Ors.

Hon’ble Judges/Coram:Manish Pitale, J.

Citation: 2018(6) MHLJ 227

1. By this appeal, the appellant has challenged the judgment and order dated 16-09-2015, passed by the Court of District Judge-2, Pusad (appellate Court) in Regular Civil Appeal No. 70 of 2011, whereby the appeal has been dismissed and judgment and decree dated 12-07-2011, passed by the Court of Joint Civil Judge, Senior Division, Pusad (trial Court) in Special Civil Suit No. 22 of 2005, in favour of respondent No. 1- Society has been confirmed.

2. The respondent No. 1-Society is the original plaintiff. It filed the aforesaid suit for declaration and possession against the present appellant and respondent No. 2. It is claimed by respondent No. 1-Society that Plot No. B-5 (suit plot) was originally allotted to father of respondent No. 2, which was later inherited by the said respondent. It was further claimed by respondent No. 1-Society that although loan in respect of the suit plot was repaid by respondent No. 2, he did not take possession of the same and that the appellant (original defendant No. 1) had unauthorizedly taken possession of the suit plot. In this backdrop, respondent No. 1-Society filed the suit and claimed possession of the suit plot. The appellant filed his written statement and denied the claim made by respondent No. 1- Society. He contended that there was an agreement between him and respondent No. 2 in respect of the suit plot that he would pay the loan installments and that he would be then entitled to the suit plot. It was also contended by him that he had indeed repaid the loan installments, but, the receipts in respect thereof had been issued in the name of respondent No. 2. The appellant also claimed that he had perfected his title in the suit plot by virtue of adverse possession.

3. The appellant was represented by an Advocate before the trial Court and beyond filing written statement, no further steps were taken on behalf of the appellant because his Advocate claimed that he had received no instructions and that therefore, he was unable to conduct the matter on behalf of the appellant before the trial Court. The said Advocate also issued notice to the appellant and claimed that a postal acknowledgment had been received. The said letter along with acknowledgment were placed on record of the trial Court along with pursis. The respondent No. 2 supported the case of respondent No. 1-Society before the trial Court.

4. On this basis, with evidence being led only by respondent No. 1-Society (original plaintiff) before the trial Court, the issues were framed and decided in favour of respondent No. 1 and accordingly the suit was decreed. It was declared that the appellant was encroacher in the suit property and he was directed to handover possession of the suit plot to respondent No. 1-Society.

5. Aggrieved by the said judgment and decree passed by the trial Court, the appellant filed Regular Civil Appeal No. 70 of 2011, before the appellate Court. The appellant raised a grievance before the appellate Court that he had not received any letter from his Advocate and that the letter and postal acknowledgment placed on record before the trial Court were not enough. It was contended that since his Advocate was not discharged as required by law, the entire proceedings before the trial Court stood vitiated and that therefore the judgment and decree passed by the trial Court deserved to be set aside. The appellate Court took into consideration the documents on record, including the letter/notice (Exhibit-77) sent by the Advocate of the appellant and the postal acknowledgment (Exhibit-78) showing that it was duly signed by the appellant. The appellate Court found that the signature of the appellant on the acknowledgment when compared with the signatures on the written statement and other applications, was found to be the same and that therefore service of letter/notice at Exhibit-77 on the appellant was duly proved. The appellate Court found that this was sufficient to show that the Advocate for the appellant had done enough for being discharged and that even if his appearance was shown in some later dates in the roznama, it could not be said that this was sufficient proof of participation of the said Advocate in the proceedings before the trial Court. The appellate Court found that before the said Advocate had been appointed, the earlier Advocate had sent the Vakalatnama for no objection and his Vakalatnama had not been cancelled. On this basis, the appellate Court rendered the finding that the appellant could not put the blame on anyone else as he was not diligent in defending the suit. On this basis, the appeal was dismissed by the impugned judgment and order dated 16-09-2015.

6. Aggrieved by the same, the appellant has filed this appeal. On 28-04-2016, this Court issued notice in this appeal on the following substantial question of law :-

“Whether in absence of the procedure as contemplated by Clause 660(4) of the Civil Manual by the trial Court, whether it could be treated that the counsel for the appellant had been validly discharged?”
7. Heard learned Counsel for the parties. Admit on the aforesaid substantial question of law. Heard finally with the consent of parties. This Court has heard learned Counsel for the parties extensively on the aforesaid substantial question of law.

8. Shri K.S. Narwade, learned Counsel appearing on behalf of the appellant contended that a perusal of Exhibit-78, the purported acknowledgment signed by the appellant, would show that it does not bear any postal stamp for it to be accepted as postal acknowledgment. On this basis, it is contended that there was insufficient evidence on record to prove that the appellant had been served with letter/notice (Exhibit-77) issued by the Advocate for the appellant. It was further contended that no instructions pursis filed by the Advocate was of no significance and that the appellate Court had erred in holding that the appellant himself was to blame for lack of diligence in defending the suit. It was further contended that the material on record demonstrated non compliance with Clause 660(4) of the Civil Manual and that therefore the impugned judgment and order, as also the decree passed by the trial Court deserved to be set aside and the parties were required to be sent back to the trial Court for proper adjudication of the suit filed by respondent No. 1-Society.

9. On the other hand, Shri U.J. Deshpande, learned Counsel appearing on behalf of respondent No. 2, submitted that since the appellate Court had compared the signatures of the appellant on the postal acknowledgment (Exhibit-78), written statement and other applications, which were found to be identical, there was no scope for the appellant to argue that he was not served with letter/notice (Exhibit-77) issued by his Advocate to him. It was submitted that when the pursis along with said letter/notice (Exhibit-77) and postal acknowledgment (Exhibit-78) were placed on record before the trial Court by the Advocate, which was taken note of by the trial Court, there was sufficient compliance with Clause 660(4) of the Civil Manual and that there was no substance in the contentions raised on behalf the appellant. It is significant that respondent No. 1-Society (original plaintiff) has not appeared before this Court, although served.

10. The central issue that needs consideration in this appeal is, whether the Advocate appearing for the appellant before the trial Court could be said to have satisfied the Court that he had no instructions from the appellant and whether filing of pursis with the aforesaid documents on record of the trial Court by the said Advocate was sufficient compliance with Clause 660(4) of the Civil Manual. If it is found that there was sufficient compliance, the appellant would have no case before this Court.

11. On the question as to whether the appellant was served with letter/notice at Exhibit-77 sent by his Advocate, there is a document of acknowledgment at Exhibit-78 which was placed on record before the trial Court. The contentions raised on behalf of the learned Counsel for the appellant that since there was no postal stamp on the acknowledgment, it could not be treated as an acknowledgment signifying service of letter/notice upon him, cannot be considered by this Court because the appellate Court has examined the signature of the appellant and compared the same with his signatures on the written statement and the other applications. The appellate Court has satisfied itself that the signatures on all these documents are the same. Being the final Court on facts, the aforesaid pure findings of fact rendered by the appellate Court cannot be interfered with, while exercising second appellate jurisdiction. There is no substance in the contentions raised on behalf of the appellant that there was lack of evidence to show that he was indeed served with the aforesaid letters/notice (Exhibit-77) issued by his Advocate.

12. Even if it is held that the said letter/notice (Exhibit-77) was duly served on the appellant, the question is whether that was enough to show compliance with Clause 660(4) of the Civil Manual. In this regard a perusal of the aforesaid provision becomes relevant :-

“Section 660(4)- When an Advocate who has filed 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. The Advocate shall file a note in writing requesting the Court for permission to withdraw appearance and shall also file along with the Note the letter or 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 satisfied 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.”
13. The aforesaid provision shows that when an Advocate wishes to withdraw his appearance, he is required to send a written notice of his intention to do so to his client at least 7 days in advance of the case coming up for hearing before the Court. Thereafter, his Advocate is required to file a note in writing requesting the Court for permission to withdraw appearance. He is also required to file along with the note the letter that he has sent to his client together with its written acknowledgment. Upon such documents being filed by the appellant intending to withdraw his appearance, the Court has to satisfy itself that no inconvenience is likely to be caused to the Court or the client and thereafter the Court may permit the Advocate to withdraw his appearance. The Court can also impose such terms and conditions as it may deem proper either in public interest or in the interest of the parties while permitting the Advocate to withdraw his appearance. The facts of the present case show that even if the findings of fact rendered by the appellate Court are accepted, what is proved on record is that the Advocate of the appellant did issue letter/notice (Exhibit-77) to him and that it was served upon the appellant which was proved by the acknowledgment at Exhibit-78. The Advocate for the appellant filed no instructions pursis and along with the same he placed on record letter/notice at Exhibit-77 and the acknowledgment at Exhibit-78. Thus, up to this stage there has been compliance with Clause 660(4) of the Civil Manual in the present case. But, it appears that, thereafter, the trial Court has simply taken note of the aforesaid pursis and documents filed by the Advocate for the appellant. There is no order or direction passed by the trial Court regarding its satisfaction that no inconvenience is likely to be caused to the Court or to the appellant while permitting the said Advocate to withdraw his appearance. In fact, there is no order permitting the Advocate in the present case to withdraw his appearance on behalf of the appellant and obviously there are no terms and conditions recorded for grant of such permission to withdraw in the present case. In the absence of any such order passed by the trial Court, there is non compliance of the last and the most crucial limb of Clause 660(4) of the Civil Manual in the present case.

14. The learned Counsel appearing on behalf of respondent No. 2 has submitted that the appellate Court recorded that there were other Advocates earlier appointed by the appellant and their Vakalatnamas were not cancelled and that therefore, the appellant could be said to be represented by those Advocates. But, even if the said fact is taken into account, there is no order as contemplated under Clause 660(4) of the Civil Manual by the trial Court, granting permission to the Advocate to withdraw his appearance. There was nothing to show that it was of the opinion that even if the Advocate appearing for the appellant withdrew from the case, there were other Advocates capable of representing him. In the absence of any such order, there is non compliance with the aforesaid provision of the Civil Manual. The only conclusion that can be drawn from the aforesaid fact and application of Clause 660(4) of the Civil Manual to the facts of the present case is that the appellant has gone unrepresented before the trial Court and that his Advocate has not withdrawn from appearance on his behalf in accordance with law. The trial Court could have issued notice to the appellant, which was also not done.

15. As the appellant was not represented before the trial Court, beyond filing of written statement and there was no evidence adduced on his behalf when he was the only contesting respondent, it becomes evident that the entire proceedings and decree passed by the trial Court stood vitiated. The appellate Court failed to appreciate this aspect of the matter while holding that the proof of service of letter/notice (Exhibit-77) was enough to show that the Advocate representing the appellant had been duly discharged and that it was only the appellant who was to be blamed for not being diligent. The requirement of Clause 660(4) of the Civil Manual in its entirety was not appreciated by the trial Court while holding against the appellant. This has rendered the findings of the appellate Court perverse, requiring interference at the hands of this Court.

16. In this backdrop, the substantial question of law framed by this Court is answered in favour of the appellant and against the respondents. As a consequence, the impugned judgment and order of the appellate Court is set aside. The judgment and decree passed by the trial Court in favour of respondent No. 1 is also set aside and the parties are relegated to the trial Court for fresh consideration of the suit filed by respondent No. 1. Since the suit was filed in the year 2005, it would be in the interest of justice that the same is disposed of expeditiously. Therefore, the trial Court is directed to dispose of the suit within a period of six months from the date of receipt of a copy of this order. The parties are directed to appear before the trial Court on 25-04-2018. Original record may be transmitted to the trial Court within a period of 10 days from today. There shall be no order as to costs.

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