Champa Devi v. U. P. State Electricity Board — 1992 DIGILAW 1050 (ALL)

JUDGMENT H.N. Tilhari, J. - This is an application with the prayer for restoration of the Second Appeal after having setaside and recalled order dated 1621983 passed by Hon. Mr. Justice R.C. Deo Sharma, dismissing the Second Appeal for want of prosecution, and with the further prayer that interim order of stay dated 1811978 be restored. 2. No counteraffidavit has been filed on behalf of the U.P. Electricity Board either in the matter of restoration application or in the matter of application for stay of recovery proceedings and stay of operation of notice 1721992 Annexure A1. 3. Shri S.K. Srivastava (Advocate) learned counsel for opposite party has contested the applications, i.e. application for restoration and interimrelief, orally. 4. I have heard Shri Hari Shanker Jain learned counsel for the appellant/applicant and Shri S.K. Srivastava on behalf of respondentElectricity Board. 5. The facts of the case, in brief, are that on 16283 this Hon'ble Court, Hon'ble R.C. Deo Shsrma, J. passed the following order dismissing the applicant's Second Appeal for want of prosecution. The order passed by Hon. R.C. Deo Sharma, J. reasons as under: Shri A.K. Singh holding brief for Shri S.C. Mishra states that the client has taken back the file and he has no instructions. Learned Counsel for the respondent is present. The appeal is dismissed for want of prosecution. 6. The appellant on 2751983 moved the application for restoration of appeal supported by an affidavit sworn by one Raja Ram Gupta, who claimed himself the pairokar of the appellantapplicant. According to the case of the appellantapplicant, the appeal was originally filed by Shri Chandra Dutt, husband of applicant no. 1 and father of appellants 2 to 7 and after the death of Chandra Dutt, applicants were substituted in place of Shri Chandra Dutt. The applicant further alleged that Shri K.N. Mishra, the then Advocate was engaged and the appeal was got filed through Shri K.N. Mishra. 1 and father of appellants 2 to 7 and after the death of Chandra Dutt, applicants were substituted in place of Shri Chandra Dutt. The applicant further alleged that Shri K.N. Mishra, the then Advocate was engaged and the appeal was got filed through Shri K.N. Mishra. The appellant further alleged that on the elevation of Shri K.N. Mishra to the Bench of this court as a Judge, the appellant has taken away the file of the case from the office of Shri K.N. Mishra and thereafter the appellant contacted Shri Robin Mitra, an Advocate of this court and handed over the file to Shri Robin Mitra and in the own words of the applicant took the file of the case from the office of Shri Mishra and handed it over to Shri Robin Mitra but was engaged later on. It is further stated in that paragraph, other learned counsels who were juniors to Shri K.N. Mishra had no concern with the case. In paragraph 3 it has been stated by the pairokar that the pairokar of the appellant came to know that appeal has been listed for 1621983 and in the cause list he found that the case stands listed before Hon'ble Mr. Justice D.N. Jha in Court No. 2. The pairokar found the name of Shri Robin Mitra had not been shown in the cause list and as such he made all possible efforts to contact Shri Mitra and tell him about the case but despite all possible efforts Mr. Mitra could not be contacted in court on that date. Finding himself helpless in the application it has been stated that the pairokar kept sitting in the court room with a view to inform the position to the court when case is calledup. The applicant's case further is that when the case was not calledup he took that it shall be listed again. In the application it has further been stated that the pairokar himself also thought that since the name of Shri S.C. Mishra has been shown in the cause list and Shri Mishra was granted leave from 1721983 to 23283 the case would stand out and would be listed afterwards. In the application it has further been stated that the pairokar himself also thought that since the name of Shri S.C. Mishra has been shown in the cause list and Shri Mishra was granted leave from 1721983 to 23283 the case would stand out and would be listed afterwards. In para 8 it has been stated that when he found that the case could not be listed till the last week of this month May 6, 1983 the pairokar requested Shri U.D. Shukla to file his power to inspect the record and on inspection of record it was found that the appeal had been dismissed by Hon'ble R.C. Deo Sharma on 16121983 for want of prosecution in Court No. 6. It has been asserted that the default has been bonafide as the appellant could not know the position of the case. 7. I have perused the record of the case and the ordersheet of the case as well. It is to be noted that Shri K.N. Mishra had been a senior Advocate, designated under the provisions of Advocates Act. The record of the appeal shows that the appeal was filed on 16th January, 1978 under the signatures of Shri S.C. Mishra, an Advoeate of the Court, (who) at that time no doubt had been working in the Chamber of Shri K.N. Mishra as his junior and the power filed at the time of filing the appeal bears signatures of Shri S.C. Mishra and Smt. P. Mishra (Advocates). On the top of the power it is written that the appeal will be argued by Shri K.N. Mishra, senior Advocate. Senior Advocates never signed either the power or the appeal. The appeals are to be signed by Advocates other than senior Advocates. The junior Advocates only mention that the appeal will be argued by the senior Advocates. That on 12.11.1979 an application, on the death of Shri Chandra Dutt, was moved for substitution of the name of heirs of Chandra Dutt and the substitution has been allowed vide order dated 391980. Along with this application the power executed by the heirs in favour of Shri Jagdish Singh. That on 12.11.1979 an application, on the death of Shri Chandra Dutt, was moved for substitution of the name of heirs of Chandra Dutt and the substitution has been allowed vide order dated 391980. Along with this application the power executed by the heirs in favour of Shri Jagdish Singh. Shri Ashok Kumar Verma and Dilip Rastogl were filed and under the signatures of Shri Ashok Kumar Verma an intimation to the Registrar was filed that the appeal will be argued by Shri Kailash Nath Mishra, Senior Advocate, and this was also filed in November, 1979. A perusal of the ordersheet indicates that Shri K.N. Mishra having been elevated to the bench of this Hon'ble Court, on 151981 the registry issued the intimation to appellants regarding elevation of Shri K.N. Mishra to the bench of this court. Thereafter order sheet indicates the appeal to have been listed for hearing on various dates but stood adjourned. 8. There is no indication on the record as to when and on what date, the appellant engaged Shri Robin Mitra and filed his power, whether it was on some date before 1621983 or afterwards. As regard the file of the Second Appeal and its ordersheet, per se the position regarding the engagement of Shri Robin Mitra or the filing of his power or engagement is not clear atall if the power of Shri Robin Mitra had been filed by the appellant or their pairokar before 1621983. When I turn my eyes to the file of the case relating to restoration application i.e. C.M. No. 762 of 1983, it appears there from that firstly, there is a Vakalatnama signed by Shri Yogesh Kumar Gupta and bears the date 2651983 and 2751983 which is the date contained under the signatures of Shri U.D. Shukla and Smt. P. Mishra (Advocate). The application for restoration also appears to have been moved on 2751983. The application for restoration also appears to have been moved on 2751983. Apart from this Vakalatnama, there is another Vakalatnama in this file, executed by the Appellantapplicants, in favour of Shri U.D. Shukla and Shri Robin Mitra (Advocate) jointly and it bears the signatures of Shri Shukla and also of Shri Mitra but this power does not contain any endorsement indicating the date of its being filed nor any date is mentioned either under the signatures of either of two counsels i.e. Shri U.D. Shukla and Robin Mitra nor any date is mentioned under the signatures of any of the Advocates. The courtfees adhesive, of Rs. 5, also does not contain the date being mentioned therein and as such it cannot be presumed to have been filed before 1621983. One thing to be noted in this case is i.e. what stated in paragraph 8 of the restoration application and in paragraph 2 of the application. In paragraph 2 it has been stated that the appellant pairokar had taken the file from the office of Shri K.N. Mishra, and Shri S.C. Mishra and others who were then juniors of Shri K.N. Mishra had no concern with the case. It was further asserted ''that file had been handed over to Shri Robin Mitra but, was engaged later on. The position is that lateron in paragraph 8 it has been stated that when the case could not be found on List till the last week of this month, the pairokar requested Shri U.D. Shukla to file his power and inspect the record. Looking to these allegations and the undated power containing no date, as has been mentioned above, and having been executed by the appellantapplicants in favour of Shri U.D. Shukla and Shri Robin Mitra jointly, it becomes quite clear that really this power was executed in favour of Shri U.D. Shukla for inspection of record and in this the name of Shri Robin Mitra has been included and not earlier. As there is no other power which can be said to have been executed in favour of Shri Robin Mitra, the power referred to in paragraph 8 of this application which should or might have been filed and as alleged in paragraph 8, was filed at the time of moving for inspection in which Shri Robin Mitra's name finds place. As there is no other power which can be said to have been executed in favour of Shri Robin Mitra, the power referred to in paragraph 8 of this application which should or might have been filed and as alleged in paragraph 8, was filed at the time of moving for inspection in which Shri Robin Mitra's name finds place. This power was no doubt filed sometimes in the month of May, 1983 because inspection of the file, according to own averment of the applicant in paragraph 8, was got made in the month of May, 1983. Factually speaking in the context of the averment made in the application, it has to be considered whether the appellant or pairokar acted bona fide an 1 whether they had shown sufficient cause for absence and whether in the context of the facts of the case whether they are entitled to exercise of discretionary jurisdiction of court for restoration of appeal and whether the sinequanon for exercise of jurisdiction under Order 41 rule 19 CPC has been established. Order 41 Rule 17 CPC reads as under: Rule 17 Dismissal of appeal for appellant's default. Subrule 1 Where on the day fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make an order that appeal be dismissed. Rule 19 Order 41 Provides for readmission of appeal dismissed for default and it reads as under: Where the appeal is dismissed under rule 11 subrule (2) or Rule 17 of Rule 18, the appellant may apply to the court for readmission of the appeal and where it is proved that he was prevented by sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall admit the appeal on such terms as to costs or otherwise as it thinks fit. 9. 9. For exercise of power under Order 41 rule 19, the condition precedent is that it should be established by the appellantapplicant that he was prevented by any sufficient cause from appearing and this is really the sinequanon for exercise of jurisdiction by this court under that rule and it has to be examined whether appellant was prevented by any sufficient cause as has been mentioned earlier by means of this order and as appears from averment made in this application. The appellantpairokar had taken the file from the Chambers of Shri K.N. Mishra. No doubt, Shri K.N. Mishra had been elevated to the bench but Shri K.N. Mishra had only to argue the matter, had he not been elevated to the bench. The power executed by Shri Chandra Dutt in favour of Shri S.C. Mishra and Smt. P. Mishra, on the death of Shri Chandra Dutt Mishra, no doubt, ceased to be operative in accordance with the provisions of order 3 rule 4(2) which reads as under: 10. Rule 4 deals with the appointment of pleader's counsel and subrule 2 to rule 4 of order 3 provides as under: Every such appointment shall be filed in the court and shall for the purpose of subrule 1 be deemed to be in force until determined with the leave of the Court by a writing signed by the client or his pleader as the case may be and filed in court, or until the client or the pleader dies or until all the proceedings in the suit are ended so far as regards the client. 11. In this case, Shri Chandra Dutt having died and power executed in favour of Shri S.C. Mishra, no doubt, ceased but so far as other counsels, namely, Shri A.K. Verma, Advocate, Shri Dilip Kumar Rastogi, Advocates are concerned, whose powers had been filed on or after 12th of November, 1979 and which had been executed by the heirs of Shri Chandra Dutt, original appellant i.e. by the present appellant/applicants, continued to remain operative and effective as the same was not withdrawn either by the clients or by the counsels with the permission of the court. 12. Dealing with the provisions of Order 3 rule 4, a Division Bench of Calcutta High Court has been pleased to laydown as under: 13. 12. Dealing with the provisions of Order 3 rule 4, a Division Bench of Calcutta High Court has been pleased to laydown as under: 13. The case of Mohan Lal Sewlal, A Firm Versus Probodh Krishna Shome reported in (AIR (37) 1950 Calcutta 576) has laid down as under: It is true that before the Court grants the leave to discharge a lawyer under Order III rule 4 the Court is entitled to make suitable provisions for the payment of the sums due to the outgoing pleader in respect of the service rendered by him and in respect of the costs incurred by him on behalf of his client. We also agree with Mr. Ghosh that as subterfuge, the petitioner cannot engage another lawyer without formally discharging the previous lawyer and without arranging for payment of the sums due to him. 14. Dealing with this aspect of the matter under Order 3 Rule 4, a Division Bench of Andhra Pradesh High Court, in the case of Kodana Ramaswami Vari Devasthanam and others v. D. Seshayya and others (AIR 1957 Andhra Pradesh 950) has laiddown, with reference to Order 3 rule 4, as under: It appears to us and further that the rule in so far as it governs the continuance of a vakalat, is primarily concerned not so much with the right of an Advocate as with the right of the court to consider that the client, who appears by a pleader in any proceedings continues to be represented by him until the appointment which is filed in court is determined in the manner specified in the rule. The words shall be deemed to be in force until determined with the leave of the Court seem to me to point to this conclusion. Though the Vakalat constitutes an agreement between the client and the pleader, it cannot be put an end to, so far as the court is concerned, solely by their own agreement. It seems to us that the object of the rule in insisting upon prior leave of the court before the engagement could be terminated, visavis the court is to ensure that the work of the court is not dislocated by a sudden cancellation of a vakalat by a client or withdrawal from a case by an advocate during the course of the proceedings. It would be Intolerable, if the continuity of judicial proceedings should be affected by anything done without reference to the court. Parties to the litigation might well abuse such a situation and make it a ruse for obtaining adjournments that might otherwise be refused. 15. From the above cases, the principles of law that emerge out may be stated as under: 16. That so far as the court are concerned, it is not open to a party to determine the appointment of a counsel without permission of the court. It is not open to a client to withdraw the file of the case from his counsel without permission of the court as required under Order 3 rule 4 and ordinarily a counsel cannot withdraw from the case, once his being engaged without leave of the court so far as the case is concerned, as if a party is deemed to be entitled to change counsels one after other at his sweet will and take away from the file of the case from one counsel without determining his appointment according to requirement of the rule and engage other and thereafter engages a third counsel after taking the file of the second counsel without consent in writing of the counsel already on record of the case and without permission of the court disastrous consequences may ensue and follow as has been pointed out by the Division Bench of Andhra Pradesh High Court and as such, it is not open to a party to subterfuge another counsel before determining the appointment of the earlier one in accordance with law as provided under Order 3 rule 4, except in the cases or in the circumstances provided by the modifying the rules or immediate appointment of the second counsel with the consent in writing of the counsel already on record. In this context reference may be made to the rules relating to conduct of Advocates framed by the Bar Council of India. In this context reference may be made to the rules relating to conduct of Advocates framed by the Bar Council of India. The Bar Council of India Rules, 1975, vide Rule 39 of Chapter II of Part VI thereof provides and lays down as under: Rule 39 of Chapter II Part VI of Bar Council of India Rules, 1975 reads as under: Rule 39 An Advocate shall not enter appearance in any case in which there is already an Vakalat or memo of appearance filed by an Advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the court stating reasons why the said consent could not be produced and be shall appear only after obtaining of the permission of the court.'' This rule per se shows as a rule of conduct on the part of Advocate and it imposes an obligation on Advocate that in cases or in any case where there is already an Advocate engaged by a party and Vakalatnama has already been filed, no Advocate shall appear for that party except with the consent of the Advocate already on the record of the case and a reading of the rules indicates that as consent has to be produced before the court, it means the consent should be in writing and if for some reasons or other the consent can not be produced then the second counsel put in appearance, in the case, with application for permission in which he shall state the reasons as to why he is unable to produce the consent and will seek the permission of the court for appearing in that case. The law and spirit of this rule of conduct on the part of Advocate also emphasise and indicates its purposes, which is twofold, namely, firstly, that keeping pace with the position of an Advocate, it is necessary that in order to maintain certain norms of lis and ethics of profession as well as to maintain their status and dignity, it should be provided that they should not themselves to make their ownselves or their colleagues, a subject matter or a tool or a thing in the hands of litigants or touts or like persons to be changed every now and then according to the whims of the litigants or control over them of unwanted touts or like persons on one hand and the rule casts a duty on them that the counsel should not accept a brief in which an Advocate is already there to represent the party who intends to engage him and should not put in appearance for a party who has already engaged a counsel and power on whose behalf of a counsel has already been filed on the record of the case unless and until the counsel already on record gives his consent in writing or in some special circumstances and cases where consents have not been obtained or could not be obtained and produced before the court, requires the counsels, narrating those circumstances and reasons why the consent could not be obtained move application for permission and then the court having the power in such a case to grant permission to the second counsel to appear grants the permission after considering those circumstances' justifying the grant of permission. The second object of the rule is to maintain certainty of representation of a party in the case by a specifically appointed counsel and, thirdly, as far as possible not to allow the parties litigants to abuse such a situation and to make it (sic) of and cause for obtaining adjournments which might otherwise be refused. 17. Thus considering the whole aspects of law when I apply it to the facts of the case, I find that, firstly, in this case, the other counsels were there, i.e. the counsels junior to Shri K.N. Mishra. Their power had neither been withdrawn nor their appointment has been terminated with the permission of the court. 17. Thus considering the whole aspects of law when I apply it to the facts of the case, I find that, firstly, in this case, the other counsels were there, i.e. the counsels junior to Shri K.N. Mishra. Their power had neither been withdrawn nor their appointment has been terminated with the permission of the court. It is no good ground for appellant to say because those counsels were junior Advocates with lesser standing at that time when Shri Mishra was elevated to the bench, that file should have been taken over from them without any information to the Court and to play mockery with the profession of law and with the court. The appellants were not justified in saying that they handed over file to Shri Robin Mitra but at the time the file was handed over, they did not engage him, and that they engaged Shri Robin Mitra later on and to keep mum as to when Shri Mitra was engaged. No date of engaging Shri Robin Mitra or that of getting his power filed has specifically been stated in the application and affidavit. The power on record in which name of Shri Mitra is contained and mentioned is undated. No date is mentioned therein but in this power the name of Shri U.D. Shukla, Advocate alongwith Shri Robin Mitra is written and as per paragraph 8 that power of U.D. Shukla was filed in the last week of May, 1983 and record was got inspected. Reading this power alongwith paragraph 8 of the application it becomes quite clear that the applicants have attempted to make out and to put a false and incorrect case to show his ground or cause for absence when Shri Mitra's power had not been filed at ail before 1621983 as it appears from record and so there was no need to show the name of Shri Mitra in the cause list. Shri S.C. Mishra's name and that of other counsel name printed and shown in the cause list. If the pairokar would have come to Lucknow, if suppose Mr. Shri S.C. Mishra's name and that of other counsel name printed and shown in the cause list. If the pairokar would have come to Lucknow, if suppose Mr. Mitra was not available he could have well approached Shri S.C. Mishra or Shri A.K. Verma, another practising Advocate of this Court whose power is also on the record of this appeal along with that of Shri Dilip Rastogi and could have got something done but instead of being vigilant, the appellant and appellant's pairokar acted negligently as they rseither appear to have engaged Shri Mitra before 1621983 though they might have taken away the file from the Chambers of Shri K. N. Mishra and they did not care to contact the Junior counsels i.e. the counsel attached to the chamber of then senior Advocate Shri K.N Mishra. This conduct of appellants or their pairokar is nothing but mockery played with the provisions of law, with the court and profession of law as they did no: even care to inform the court that they have changed the counsel nor did seek permission to change the counsel. In such circumstances if the parties have been negligent in their conduct of the case or in doing the pairvi of the case, nobody else is to be blamed and the parties concerned have to bear their consequences. In my opinion, the allegations made in the application do not make out the sufficient cause for absence and for the recalling order dated 1621983. There being no sufficient cause for absence, and the falsity of the appellant's case as regards application for restoration per se being visible as such application for restoration has got no force and needs be rejected. 18. Thus considering the matter, I don't feel inclined to allow the restoration application. The application for restoration as such is dismissed with costs, and consequently the application for interim relief is rejected and interimorder, if any, has been passed earlier shall stand vacated with dismissal of an application No. 762 of 83 and Cm. No. 479 of 1992. [Application rejected]