1.Leave granted.
2.Heard learned Counsel for the parties and perused the record.
3.This appeal arises from an order dated 30.1.2023 passed by the High Court of Judicature at Bombay, Nagpur Bench at Nagpur in Writ Petition No. 4227/2021 by which the Writ Petition of the respondent was allowed, dated 16.6.2021 was set aside and the matter was remanded to the Small Causes Court for deciding the suit expeditiously.
4.A Civil Suit No. 85 of 2014 was instituted by the appellant against the respondents, inter alia, for possession under Section 16(1)(g) and (n) of the Maharashtra Rent Control Act, 1999 (“1999 Act”). In the suit summons were served upon the defendants. The defendant Nos 2 and 3 did not appear despite service of summons therefore, vide order dated 19.04.2014, the suit was directed to proceed ex parte against them. Likewise, defendant No. 1 failed to appear therefore, vide order dated 24.06.2014, the suit was ordered to proceed ex parte against him. Thereafter, defendants applied for recall of the order directing suit to proceed ex parte against them. The application was allowed and they filed their written statements.
5.During the course of the suit proceedings, the advocate who represented the defendants applied for deletion of the name of the third defendent from the array of parties, which was rejected vide order dated 26.11.2014, and, in between, he submitted pursis (Exhibit-42) informing the Court that he has not been provided instructions by his clients despite letter sent to them. However, the suit proceeded, evidence of the plaintiff was recorded and, ultimately, the suit was decreed on 04.03.2015.
6.Defendants preferred appeal against the judgment and decree of the Trial Court under Section 34 of the 1999 Act. In the appeal, the main ground urged on behalf of the defendants was that they were not given adequate opportunity to present their case in as much as when their counsel had submitted pursis, claiming no instructions, Court ought to have served a notice on them to engage another counsel to represent their case. It was also contended that the requisite procedure for withdrawal of Vakalatnama by a counsel, discharging him of his obligations to represent his client in a proceeding, was not followed.
7.The aforesaid aspect was dealt with by the
Appellate Court in detail as could be
gathered from paragraphs 13 to 25 of its
judgment, reproduced below:
“13] The point No.1 relates to
whether learned Trial Court was
correct in proceeding further in
view of pursis below Exh.42 filed
by the advocate for respondent.
Before scrutinizing this aspect, it
is necessary to see what was
actually transpired before the
learned Trial Court. The learned
advocate for appellants/ defendants
forcefully argued that, no
opportunity of hearing was given or
followed by the learned Trial Court
after filing pursis below Exh. 42
dated 26/11/2014. Before
scrutinizing this particular
aspect, I find it necessary to see
and analyse the pursis below
Exh.42. The Exh. 42 reflects that,
it is simply stated by the learned
advocate for defendants that, the
defendants are not attending his
office and therefore, he is not
having any instructions to that
effect. The Exh. 42 is also annexed
with the office copy of notice
dated 20/11/2014 and its postal
RPAD receipts.
14] On careful reading of this
particular notice, it is simply an
intimation of prospective action
which can be initiated by the
learned advocate for defendants, if
they did not contact him. The Exh.
42 annexed with the office copy of
notice dated 20/11/2014 no where
reflects that, it shall be treated
as withdrawal of vakalatnama. The
withdrawal of vakalatnama by
advocate is having altogether
different consequences than the
formal pursis in the form of
prospective future action intimated
by the advocate to his client. The
both proceedings invites different
consequences in civil trial. They
can not be treated at par when
defendant himself is at fault.
15] Apart from this aspect, it
is equally worth to note that the
said notice was sent by RPAD by
advocate for defendant. In this
background, the burning and
searching question is required to
be answered by the appellants/
defendants as to
“Whether they had received
notice dated 20/11/2014 by
RPAD sent by advocate
S.S.Sitani” ?.
This particular question will
determine the fate of the present
appeal. The appeal memo filed by
the appellants nowhere discloses
any whisper or any response to this
crucial aspect. It was incumbent
upon the appellants to at least
make firm statement about the
notice dated 20/11/2014 issued by
advocate Shri.S. S. Sitani by RPAD.
The appellants/ defendants cannot
built their appeal by not making
any statement in this regard. Even
during the course of final argument
before this Court, neither the
appellant nor their advocates are
in position to answer this
pinpointing question. The
sufficient opportunity was afforded
to the appellant to inquire and to
make positive statement about the
status of the said notice dated
20/11/2014 sent by RPAD. It was
incumbent upon the appellants /
defendants to either outrightly
accept that, they had received this
notice or outrightly deny about the
receipt of such notice. The
appellant cannot remain evasive in
answering this crucial question.
Moreover, the pursis below Exh. 42
annexed with notice is not a
withdrawal of vakalatnama as
contemplated under Advocates Act or
the provisions of Paragraph No. 588
of Civil Manual.
16] Under such circumstances,
merely blaming the Trial Court the
Appellants cannot built their
appeal. It is an easy excuse
adopted by the appellants. The
appellants are not ready to make
any statement about the said notice
sent by RPAD to them by their
advocate. Moreover, it is also
pertinent to note that, even after
filing said pursis, the learned
advocate Shri.S.S.Sitani on the
same date participated in making
submissions on application below
Exh. 40. The Exh.40 was preferred
by the defendant No.3 for deleting
his name from the present
proceeding. Though the learned
advocate Shri. S.S. Sitani filed
pursis below Exh. 42, still on the
same day he participated in hearing
below Exh. 40.
17] Moreover, the pursis below
Exh.42 annexed with the notice
dated 26/11/2014 is not valid
notice / intimation to the Court
about the withdrawal of vakalatnama
as contemplated under Advocate’s
Act and Civil Manual. Therefore,
the learned Trial Court rightly
decided to ignore such pursis. I am
very much conscious of the fact
that, it may result into firm
approach looking towards the
grounds of appeal preferred by the
defendants. But the appellants
cannot take the benefit of his own
casualness and inaction at all
level, even at the time of filing
this appeal also or during the
course of final hearing when
neither appellants nor their
advocate are ready to submit
anything about the receipt of
notice dated 20/11/2014. They can
not play hide and seek in their
pleadings by remaining silent about
this important aspect.
18] The only ground raised by the
appellants that, the learned Trial
Court did not issue suo-moto notice
after the receipt of information
about Exh.42. The appellants are a
businessman and they are not an
ordinary litigants. Moreover, the
pursis below Exh.42 is nowhere
indicating the withdrawal of
vakalatnma. So, under such
circumstances the casual, lazy and
indifferent litigant cannot blame
the Court for not issuing notice to
him. The casualness and indifferent
attitude of the appellant is very
much crystal clear, when he has
refused to make any statement about
the receipt or non receipt of
letter dated 20/11/2014 issued by
advocate Shri. S.S.Sitani. It was
also incumbent upon him to at-least
make an inquiry with his advocate
Shri. S.S.Sitani, once he came to
know about the disposal of civil
suit.
19] Here, at this point the learned
advocate for appellants relied upon
the ruling of Hon'ble Bombay High
Court in the case of Govinda
Bhagoji Kamable and others vs. Sadu
Bapu Kamable and others reported in
2005(1) Mh.L.J. 651. I have
carefully gone through the ratio
laid down in this case law however,
the facts of our case are
altogether different. The notice
dated 20/11/2014 along with pursis
below Exh.42 is not withdrawal of
vakalatnama. The advocate for
defendants had rightly issued
notice to his clients by RPAD. The
notice sent by RPAD is having
general presumption under Section
27 of the General Clauses Act that,
it was duly received to the
addressee. The act of the
appellants about not making any
statement about the said notice is
sent by RPAD clearly distinguishes
the present case from the ratio
laid down in this case law. The act
of the advocate to issue notice by
RPAD clearly demonstrates the
positive act on his part.
Similarly, the notice dated
20/11/2014 was only an intimation
about the future course of action.
There is general presumption that,
the notice dated 20/11/2014 was
duly received by the
addressee(appellants). So, under
such circumstances there was no
occasion for the Trial Court to
proceed further by treating the
said no instruction pursis as
withdrawal of vakalatnama as per
procedure contemplated in Civil
Manual. So, on these grounds, the
ratio laid down in this case law
cannot be made applicable to the
facts of our case.
appellants further relied upon the
ruling of Hon'ble Bombay High Court
Nagpur Bench in the case of
Rameshkumar Vyankatswami Poona vs.
Swami Vivekanand Cooperative
Housing Society, Shrirampur and
another reported in 2018 (6)
Mh.L.J. 227. I have carefully gone
through the ratio laid down in
paragraph No.10, 12, 13, 14, 15 and
16 of the judgment. However, the
facts of our case are altogether
different. The moot question
involved in this appeal is as to
whether the appellant can show
their bona fides by making a
statement about receipt or non
receipt of notice dated 20/11/2014
issued by advocate Shri.
S.S.Sitani. The appellant has
conveniently chosen not to make any
statement about the receipt or
nonreceipt of said notice dated
20/11/2014. The appellant is very
well aware that, his statement on
either side will invite further
consequences to prove his
bonafideness in the present appeal.
The appellants cannot conveniently
take evasive stand from making any
statement about the receipt or non
receipt of said notice dated
20/11/2014. So, on this count
alone, the ratio laid down in this
case law are on completely
different parameters than the facts
of our case.
appellant further relied upon the
ruling of Hon'ble Supreme Court in
the case of Rafiq and another vs.
Munshilal and another reported in
AIR 1981 Supreme Court 1400. I have
gone through the ratio laid down in
this case law. It is observed by
their Lordship that, “dismissal of
appeal for default of appellant's
counsel and therefore, the party
should not suffer misdemeanor or
inaction of his counsel”. The
principle laid down in this case
law is universally accepted.
However, the facts of our case are
drastically different. The pursis
below Exh.42 and the notice dated
20/11/2014 sent by RPAD to the
defendants is distinguishing
features. The defendants are not
ready to say anything about the
said notice and its receipt. The
defendant cannot simply blame his
previous counsel to seek the
sympathy of this Court. The
defendant is expected to come with
clean and precise statement about
the notice dated 20/11/2014.
22] It is now time and again
observed that, by making evasive
statements and blaming earlier
advocates parties continue with the
litigation before the same forum or
the appellate forum. Sometimes,
they go on with one step further by
blaming with the Trial Court or
appellate Court to protract the
litigation. But, in present case
the evasiveness on the part of the
appellants / defendants is continue
even at the stage of filing appeal
memo or during the course of final
arguments. The roznama of this case
would demonstrate that, sufficient
opportunity was granted from time
and again to the appellants to make
the statement about notice dated
20/11/2014. So, on this count also,
the ratio laid down in this case
law is not applicable to the facts
of our case.
appellants further relied upon the
ruling of Hon'ble Apex Court in the
case of Goswami Krishna Murarilal
Sharma vs. Dhan Prakash and others
reported in (1981) 4 Supreme Court
Cases 574 and Smt. Lachi Tewari and
others vs. Director of Land Records
and others reported in AIR 1984
Supreme Court 41. I have gone
through the ratios laid down in
both the case laws. However, the
facts narrated as above in our case
clearly makes an exception to the
ratio laid down in these cases.
Therefore, the ratio laid down in
these two case laws are not
applicable to the facts of our
case.
24] In view of above discussion,
the appellants cannot seek the
extraordinary remedy of setting
aside the judgment and decree
merely on the ground that, his
advocate filed no instruction
pursis. Such extraordinary remedy
cannot be considered for simple
reason as appellants were
indifferent and evasive about the
notice dated 20/11/2014. It would
have been a different case if the
appellant had made statement that,
the notice dated 20/11/2014 was not
received by him. The said fact
about the receipt or non receipt of
notice dated 20/11/2014 issued by
advocate Shri.S.S.Sitani was within
the exclusive knowledge of
defendant, but he did not explain
this before this Court.
appellant also did not seek any
information from the appellants in
this regard and continue with
filing evasive appeal on such
grounds. I do not want to say
anything more about this on the
part of learned advocate for
appellants. So, in view of above
discussion, the course adopted by
the learned Trial Court about
pursis below Exh.42 annexed with
notice dated 20/11/2014 is
perfectly legal within the
parameters of Advocates Act,
Practice and Procedure as
contemplated under Civil Manual
issued by Hon'ble Bombay High Court
in this regard. There is no
withdrawal of vakalatnama by
advocate Shri. S.S.Sitani by way of
merely filing copy of intimation
notice below Exh.42. Hence, the
point No.1 is answered in
negative.”
(Emphasis supplied)
8.The Appellate Court thereafter examined other aspects of the matter and dismissed the appeal vide order dated 16.06.2021.
9.Aggrieved by dismissal of their appeal, the respondents filed a petition under Articles 226/227 of the Constitution of India before the High Court. It is clear from paragraph 4 of the judgment of the High Court that the only point urged before the High Court was that the Trial Court gave no opportunity to the defendants to lead evidence after the counsel representing the defendants had submitted pursis (Exhibit-42), claiming no instructions.
10.To address the aforesaid submission, the High Court extracted Clause 660(4) of the Civil Manual. Clause 660(4) of the Civil Manual as extracted in the impugned judgment reads thus: “(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 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 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.” (Emphasis Supplied)
11.Thereafter, the High Court took into consideration Rule 8(4) of Chapter XXXII of Schedule VII of the Bombay High Court Appellate Side Rules, 1960, which has been extracted in the impugned judgment and is reproduced below: “Rule 8 (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 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 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.”
12.After considering the afore-quoted provisions, the High Court observed: "… where a counsel purports to withdraw his vakalatnama what is required, is a clear seven days advance notice to his client, prior to the date on which the matter is fixed for consideration. The nature and purpose for this is for enabling the litigant, to have an opportunity, either to continue with the same counsel or change counsel so that he may not go unrepresented in the proceedings.”
13.The High Court thereafter, in paragraphs 11 and 12 of its judgment, observed: “11. In the instant case, it is not in dispute that though the notice addressed by the counsel to the petitioner no.1, is dated 20/11/2014 (pg.63), the postal receipt indicates that it was posted on 25/11/2014 at 14:52 hours, as against which, the no instructions pursis at Exh.42 has been filed on 26/11/2014 (pg.62). There was obviously, a clear-cut violation of requirement of Clause 660 (4) of the Civil Manual as well as Rule 8 (4) of the Rules of 1960 framed under Section 34 (1) of the Advocates Act by the High Court as there was no service of notice seven days in advance to the date fixed. That apart, there is nothing on record, to indicate that the notice dated 20/11/2014 posted on 25/11/2014 was ever served upon the petitioner no.1/tenant as no material in that regard, has been placed on record. 12. This would clearly indicate that the no instructions pursis (Exh.42/pg.62), has been merely accepted by the Court, on the face of it without ensuring that there was any service of the notice regarding withdrawal of Vakalatnama within the framework of Rule 8 (4) of the Rules of 1960 framed under Section 34 (1) of the Advocates Act by the High Court or Clause 660 (4) of the Civil Manual.”
14.Based on those observations, the High Court took the view that the defendant (i.e. the petitioner before the High Court) was deprived of opportunity to present its case and, therefore, it is appropriate to set aside the order passed by the Trial Court as well as the Appellate Court and remand the matter to the Trial Court for decision afresh.
15.Aggrieved by the order of the High Court, this appeal has been filed.
16.The submission of the learned counsel for the appellant is that between the date when the pursis (Exhibit-42) was submitted and the date by which the Trial Court decided the matter, the case had remained pending for a period exceeding three months yet, in between, no effort was made on part of the defendant to contest the proceedings. Besides that, the Court had not permitted withdrawal of Vakalatnama by the counsel representing the defendant and the pursis did not pray for withdrawal of the Vakalatnama. Even otherwise, the procedure prescribed for withdrawal of a Vakalatnama is to put the litigant on notice to enable him to engage another counsel before the next date of hearing. The object of the procedure is not to let parties seek adjournment and defer court proceedings. Here, the counsel who represented the defendant had not withdrawn the Vakalatnama but had only claimed no instructions and along with the pursis had annexed letter sent to his client. As per the appellate court finding there was no claim of the defendants that the letter sent by their counsel was not served upon them. In such circumstances, if no instructions are provided by a litigant to his advocate, it is the fault of the litigant not of the advocate. Moreover, there was sufficient material on record to indicate that fault lay with the party and not the counsel. Further, there is nothing on record that any proceedings were initiated against the advocate for his misconduct.
17.In those circumstances, it is submitted, a well-considered decision of the Appellate Court wherein the aforesaid issue was addressed in detail ought not to have been interfered with in exercise of supervisory jurisdiction under Article 227 of the Constitution of India where the Court, ordinarily, can correct jurisdictional errors only. Based on the aforesaid submissions, it was prayed on behalf of the appellants that the order passed by the High Court be set aside and the petition preferred before the High Court i.e. Writ Petition No. 4227 of 2021 be dismissed.
18.Per contra, learned counsel for the respondent has submitted that the High Court has taken into consideration the relevant Rules governing withdrawal of power and thereafter concluded that because of lawyer's conduct the defendants were deprived of opportunity to lead evidence. Therefore, the order of remand calls for no interference.
19.We have considered the rival submissions and have perused the record carefully.
20.The only issue that fell for consideration of the High Court was whether, on account of defendants’ lawyer’s pursis, claiming ‘no instructions’, the trial court ought to have proceeded to decide the suit without ascertaining whether the defendants were duly informed about lawyer’s withdrawal from the case.
21.Before we address the aforesaid issue, it would be apposite to consider the scope of High Court’s power under Articles 226/227 of the Constitution of India while entertaining a challenge to a civil court’s order passed in a suit or proceeding.
22.The scope of High Court’s jurisdiction under Articles 226/227 fell for consideration before a three-Judge Bench of this Court in Radhey Shyam & another v. Chhabi Nath & Ors.1 This Court held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226, though they may be questioned in the supervisory jurisdiction of the High Court under Article 227 of the Constitution. The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction2. 11 (2015) 5 SCC 423 22 Surya Dev Rai v. Ram Chander Rai & Ors. (2003) 6 SCC 675.
23.In the case on hand, the appellate court had considered in detail the issue as to whether the trial court was justified in proceeding with the case, without further notice to the defendants, after submission of pursis (Exh.42) by defendants’ counsel, claiming no instructions. After a threadbare analysis and taking into consideration the surrounding circumstances, the appellate court held that the trial court committed no wrong in proceeding with the matter. The appellate court noticed that the advocate representing the defendants had claimed no instructions but not sought withdrawal of his Vakalatnama and the matter thereafter remained pending for over three months till it was decided in March 2015. In between no effort was made by the defendants to engage another lawyer. Moreover, the defendants did not come up with a case that their lawyer’s notice was not served on them therefore, they could not engage another counsel. Besides that, the record also indicated that the intention of the defendants was to delay the proceedings because earlier also the suit had proceeded ex parte against them though, later, those orders were recalled. Therefore, in our view, once the appellate court took into consideration all relevant aspects including the fact that pursis (Exh.42) did not seek withdrawal of the Vakalatnama, and withdrawal was not even permitted, there was no such jurisdictional error which warranted exercise of powers under Article 227 of the Constitution of India. The High Court without any justification went on to consider the procedure prescribed for withdrawal of Vakalatnama when neither withdrawal of Vakalatnama was permitted by the Trial Court nor the pursis prayed for its withdrawal. In such circumstances, the entire exercise of the High Court was misconceived. More so, when the view taken by the appellate court that defendant cannot take advantage of his own wrong was a plausible view based on materials available on record. Hence, in our view, appellate court’s order was not amenable to interference in exercise of jurisdiction under Articles 226/227 of the Constitution of India. The High Court clearly exceeded its jurisdiction under Article 227 of the Constitution in interfering with a well reasoned order of the appellate court.
24.As we notice that before the High Court except the aforesaid point no other point was pressed, and no other point arises for our consideration in as much as the evidence led by the plaintiff went unrebutted, we deem it appropriate to allow this appeal and restore the order of the trial court as affirmed by the appellate court.
25.The appeal is, accordingly, allowed. The order passed by the High Court dated 30.01.2023 is set aside. Writ Petition No. 4227 of 2021 shall stand dismissed. Parties to bear their own costs.
26.Pending application(s), if any, shall stand disposed of. [MANOJ MISRA] [JOYMALYA BAGCHI] New Delhi; November 18, 2025