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2001 DIGILAW 1665 (RAJ)

Sugan Chand v. Teja Ram

2001-10-11

H.R.PANWAR

body2001
JUDGMENT 1. - This appeal is directed against the order dated 18.4.95 passed by Civil Judge (Senior Division), Sojat in Civil Misc. Case No. 6/94 whereby the lower appellate court dismissed the application filed by the appellant under Order 41 Rule 19 and Order 9 Rule 9 read with section 151 C.P.C. 2. Brief facts which are necessary for decision of this appeal are that the appellant filed an appeal under Order 43 Rule 1 C.P.C. against the order passed by Munsif & Judicial Magistrate, Jetaran, dated 9.4.91 before District Judge, Pali through his counsel Shri Shivdutt Harsh. The said appeal was transferred to the Court of Civil Judge, Jetaran on 6.7.91 in pursuance of section 21(1) of Civil Court Ordinance, which was subsequently transferred by the order of the District Judge, Pali dated 3.10.91 from the court of Civil Judge, Jetaran to the court of Civil Judge, Sojat. On 25.4.92, the Civil Judge, Sojat directed to issue notices to the parties. Notice was sent to Shri Shivdutt Harsh, counsel representing the appellant for the next date fixed on 8.8.94, which was returned with the endorsement that the counsel did not accept the notice and said that the notice be sent to the party (appellant). A notice was sent to the appellant also for the same date i.e. 8.8.94 on the address mentioned in the memo of appeal by the appellant himself i.e. village 'Phoolmal, tehsil Jetaran, which was returned with the endorsement duly verified by motbirs that Sugan Chand s/o Roop Chand Oswal is not residing at village Phoolmal but he is residing alongwith his family at Jodhpur and the Jodhpur address is not known to the motbirs. Vide order dated 24.10.94, the lower appellate court considered the service on the appellant through his counsel Shri Shivdutt Harsh to be a sufficient service on the ground that the counsel representing the appellant has been informed of the date of hearing. The lower appellate court further verified the address given by the appellant in the original suit filed by the appellant. The appellant has mentioned his registered address as required under Order 7 Rules 11 and 12 C.P.C. to be of Phoolmal, tehsil Jetaran and in the memo of appeal also the same address was mentioned by the appellant. The lower appellate court further verified the address given by the appellant in the original suit filed by the appellant. The appellant has mentioned his registered address as required under Order 7 Rules 11 and 12 C.P.C. to be of Phoolmal, tehsil Jetaran and in the memo of appeal also the same address was mentioned by the appellant. At no point of time, the appellant informed his change of address and, therefore, there was no other address on the record. No further notice could have been sent to the appellant as his changed address was not known to the court. The court adopted tho best course to send the notice at the address given by the appellant in the memo of appeal and simultaneously to his counsel, noticing that the vakalatnama filed by the counsel representing the appellant, has not been withdrawn by the counsel as envisaged under Order 3 sub-rule (2) of Rule 4 C.P.C. Considering the entire material, the lower appellate court considered the service on the appellant to be sufficient and dismissed the appeal for non-prosecution. The appellant has challenged this order in this appeal. 3. I have heard the learned counsel for the parties. Perused the record. 4. It is contended by the learned counsel for the appellant that the lower appellate court erred in dismissing the application filed by the appellant for restoration of the appeal on technical grounds. it was contended by the learned counsel that the appellant had engaged the counsel Shri Shivdutt Harsh only to contest the appeal at the Jetaran Court and the appeal was dismissed by the Sojat court and, therefore, dismissal of the appeal was without proper service on the appellant personally, the lower appellate court ought not to have dismissed the appeal. 5. The learned counsel appearing for the respondent supported the order impugned and contended that the original appeal was filed before the District Judge, Pali by the appellant showing his registered address to be of village Phoolmal, Tehsil Jetaran through his counsel Shri Shivdutt Harsh. On the appeal being transferred from Pali to Jetaran, the very same counsel continued to appear at Jetaran and on transfer from Jetaran to Sojat, the counsel appearing for the appellant, was informed by a notice through court. On the appeal being transferred from Pali to Jetaran, the very same counsel continued to appear at Jetaran and on transfer from Jetaran to Sojat, the counsel appearing for the appellant, was informed by a notice through court. From the notice available on record, it clearly reveals that the counsel representing the appellant, was informed by the court regarding the date of hearing. The lower appellate court even simultaneously sent notice to the appellant himself at the registered address given by him in the original suit as well as in the memo of appeal, which was returned with the endorsement that he alongwith his family is not residing in village Phoolmal but is residing at Jodhpur and the address of Jodhpur is not known. In these circumstances, the lower appellate court had no option except to consider the service sufficient on the appellant through his counsel. The learned counsel for the respondent relied on a judgment of this Court in Pannalal and another v. Firm Ballaram Basia, AIR 1957 Rajasthan 391 and Smt. Rama & Ors. v. Smt. Magan Bai & Ors., 1997 DNJ (Rajasthan) 183 and contended that the appointment of counsel by the appellant continue to be in force unless determined with the leave of the court. In the instant case, undisputedly the appointment of the counsel was not determined with the leave of the court, and, therefore, the appointment of the counsel representing the appellant was deemed to be in force and service effected on him, is sufficient service. The lower appellate court was not required to make a roving search of the appellant to proceed with the appeal. Sub-rule (2) of Rule 4 or Order 3 C.P.C. reads as under : "Every such appointment shall be filed in Court and shall, for the purposes of sub-rule (1), be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so far as regards the client." 6. Sub-rule (2) of Rule 4ORDER3 C.PC. Sub-rule (2) of Rule 4ORDER3 C.PC. very clearly lays down that appointment of pleader shall be deemed to be in force until determined with the leave of the court by a writing singed by the client or the pleader, as the case may be, and filed in Court, or until the client or the pleader dies or until all proceedings in the suit are ended so far as regards the client. The counsel representing the appellant did not comply with the requirement of seeking for leave of the Court to withdraw from the case in writing. Thus, the counsel representing the appellant neither sought the leave of the Court to withdraw from the case in writing nor the Court granted the leave and as such, the vakalatnama filed for appointment of the counsel, was not determined by the Court and remained in force on the day when the notice was served on the counsel representing the appellant. 7. In Kodanda Ramaswami Vari Devastanam v. D. Seshayya, AIR 1957 AP 950 , it was held that Order 3 Rule 4 C.P.C. so far as it governs the continuance of the 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 sub-rule (2) of Rule 4ORDER3 C.P.C. 8. In Thomas Rajan v. Philip John, AIR 1982 Kerala 118 , it was observed that mere notice given by the Advocate to his client giving up the engagement as a lawyer could not be sufficient for withdrawal of his power in the case. The appointment of the counsel in a suit or appeal would hold good till determined according to the procedure prescribed in the Civil Procedure Code. (Emphasis supplied). 9. In Bijli Cotton Mills (Pvt.) Ltd. v. M/s. Chhaganmal Bastimal, AIR 1982 All. 183 , a Division Bench of the Allahabad High Court held that the appointment of a pleader shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader as the case may be and filed in the Court. 183 , a Division Bench of the Allahabad High Court held that the appointment of a pleader shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader as the case may be and filed in the Court. Once an Advocate is engaged as a pleader by his client the authority of the advocate to represent his client continues to remain in force until it is determined with the leave of the Court in writing, signed by the client or the pleader. In the absence of a written termination of the relationship of the client and the pleader, the pleader is not absolved of his duty to appear on behalf of his client. Any statement made by him that he had no instructions do not terminate his authority. Once he has accepted the brief, he continues to represent the client and be responsible for the conduct of the case. He is, no doubt, entitled to terminate his status as a pleader of the client but that cannot be done orally. It must be done in writing with the permission of the Court in the manner laid down by Order 3 Rule 4(2) C.P.C. 10. In Govardhanbhai Somabhai Patel v. Parshottam Umedbhai, AIR 1976 Guj. 98 , a Division Bench of the Gujarat High Court observed that an Advocate's reporting 'no instructions' does not discharge him. An order of discharge from the Court is necessary under Order 3 Rule 4(2) C.P.C. 11. In Smt. Rama's case (supra), this Court held that "the mandatory provisions envisaged under sub-rule (2) of R. 4 of 0. 3 CPC clearly provides that every appointment of a counsel shall be filed in Court and shall for the purposes of sub-R. (1) be deemed to be in force until determined with the leave of the Court by a writing singed by the client or the pleader as the case may be and filed in Court or until the client or the pleader dies or until all proceedings in the suit or appeal as the case may be, are ended so far as regard the client. 12. It was further held that as none of the conditions enumerated under sub-rule (2) of R. 4 of 0. 12. It was further held that as none of the conditions enumerated under sub-rule (2) of R. 4 of 0. 3, CPC are satisfied in the case on hand, therefore, the Court thought it just and proper in the interest of justice to finally decide the case on merit and refuse to grant leave to the learned counsel for the plaintiff-respondent to withdraw from that case and held that the plaintiff-respondent shall be deemed to be continued to be represented by her counsel even if she has taken away the relevant record from the office of her counsel." In Pannalal's case (supra), this Court held that "even if the lawyer had appeared and stated that he had no instructions, his personal presence would not have amounted to an appearance on behalf of the defendants. This may be true, and his non-appearance in the present case or, as suggested, his statement after appearing in Court that he had no instructions, only amounted to non-appearance of the defendants. The law does not require the defendants to appear. What is required is that the defendant should have notice of the application. The service on Mr. Umrao Lat, as stated above, is a due service on the defendants." (Emphasis supplied). 13. In the instant case, as noticed above, the appointment of the counsel undisputedly was not determined with the leave of the Court and was in force for all practical purposes. It has been established that the counsel representing the appellant had notice of the appeal being transferred from the Jetaran court to Sojat court. The requirement is that the appellant had a notice of his appeal being called on hearing and the notice through the counsel is a sufficient service on the appellant. The appellant cannot be permitted to say that he had no notice of the appeal more so the appellant has not informed the lower appellate court of his change of address. More so, the lower appellate court also sent the notice to the appellant at the registered address given by him in the suit as well as in the memo of appeal. In these circumstances, the Court was not required to make a roving search of the appellant. The requirement is that the appellant should have notice of hearing of the appeal having been transferred to Sojat court. 14. In these circumstances, the Court was not required to make a roving search of the appellant. The requirement is that the appellant should have notice of hearing of the appeal having been transferred to Sojat court. 14. It was next contended by the learned counsel for the appellant that the lower appellate court erred in refusing to restore the appeal. No cause much less sufficient cause for non-appearance has been shown by the appellant. It is established that the appellant had a notice of the date of hearing through his counsel and as such, it cannot be said that the appellant prevented by any sufficient cause from appearing when the appeal was called on for hearing. 15. No other point was pressed. 16. In view of the aforesaid discussion, I do not find any merit in this appeal. Accordingly, it fails and it is hereby dismissed with costs.Appeal dismissed. *******