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2007 DIGILAW 228 (ORI)

Bibhuti Bhusan Padhi v. Shantilata Padhi @ Panda

2007-04-04

A.S.NAIDU

body2007
JUDGMENT A. S. NAIDU, J. : The learned Ad hoc Addl.District Judge, FTCI, Puri on the basis of a Memo filed by an advocate dismissed Title Appeal No.38/13/66 of 1999 by order dated 6.5.2002. The said Title Appeal was filed by the defendants 1 and 2 in T.S. No.24 of 1994 of the Court of the Civil Judge (SD), Puri chal¬lenging the judgment and decree passed against them in the said suit. The present petitioner who was defendant No.2-appellant No.2 was looking after the Title Appeal on behalf of both the appellants. He filed a petition under Section 47(1) read with Section 151 of the Code of Civil Procedure before the District Judge to recall or review the aforesaid order dated 6.5.2002, registered as Misc. Case No.4 of 2004, on the ground that the appellants had not instructed/authorized the advocate engaged in the Title Appeal to file any Memo. to withdraw the appeal and that the Memo filed by the concerned advocate was without any instruction/authority. The said Misc. Case having been rejected by order dated 15.7.2005 by the Ad hoc Addl.District Judge, FTC-I Puri, appellant No.2 who was the petitioner in the said Misc.Case has approached this Court invoking Certiorari jurisdiction. 2. The scenario of facts reveal that present opposite party No.1 Smt. Shantilata Padhi alias Panda had filed the afore¬said Title Suit for partition before the learned Civil Judge (SD), Puri. The petitioner was arrayed as defendant No.2 in that suit while present opposite parties 2 and 3 were respectively arrayed as defendant Nos.3 and 1. After a full-fledged trial the Trial Court passed a preliminary decree. Being aggrieved by the judgment of the Trial Court the petitioner (defendant No.2) and defendant No.1 had filed the aforesaid Title Appeal before the District Judge, Puri which was initially registered as Title Appeal No.66 of 1999. 3. It is averred in the Writ Petition that the aforesaid Title Appeal was transferred from the Court of the District Judge, Puri to the Court of the 1st Addl.District Judge, Puri and then to the Ad hoc Addl.District Judge FTC-I, Puri. As the petitioner was working as doctor, after entrusting the appeal to an advocate, was awaiting intimation from him, but then he had no intimation from the said advocate about transfer of the appeal from Court after Court. As the petitioner was working as doctor, after entrusting the appeal to an advocate, was awaiting intimation from him, but then he had no intimation from the said advocate about transfer of the appeal from Court after Court. When the appeal was posted to a date for hearing by the Ad hoc Addl. District Judge, FTC-I, Puri, without any instruction/authority of the appellants, a petition was filed to prepone the appeal along with a Memo on 6.5.2002 before the appellate Court stating that the appellants did not want to proceed with the appeal any further. On the basis of the said petition and Memo. filed by the advocate concerned, the appeal was dismissed. Coming to know about dismissal of the appeal, the present petitioner who was appellant No.2 before the Court below, filed the aforesaid Misc.Case to recall/review the order dismiss¬ing the appeal. The appellate Court dismissed the Misc.Case on the ground that none of the ingredients of Section 47 CPC were satisfied. 4. According to Mr. R.K. Mohanty, learned counsel for the petitioner, the advocate engaged by the appellants in the title Appeal had absolutely no jurisdiction or authority to file the aforesaid Memo. before the Court below without any specific instructions to him by the appellants. He emphatically submitted that the appellants were all along diligent about the appeal and at no point of time had instructed him to file any Memo to the effect that the appellants did not want to proceed with the appeal any further and such fact being averred in the Misc.Case, the Court below ought to have recalled the order dismissing the appeal on the basis of the Memo. filed. 5. Mr. R.K. Mohanty further submitted that Order 23, Rule 1 of the Code of Civil Procedure provides for withdrawal and adjustment of the suit and stipulates that a petition for with¬drawal should always to be accompanied by an affidavit. The said mandatory requirement having not been followed in the present case, the appellate Court acted illegally in entertaining the Memo and consequently dismissing the appeal. 6. Drawing attention of this Court to Order 3, Rule 4 CPC read with Rule 485 of the GR & CO (Civil) Vol-I, Mr. The said mandatory requirement having not been followed in the present case, the appellate Court acted illegally in entertaining the Memo and consequently dismissing the appeal. 6. Drawing attention of this Court to Order 3, Rule 4 CPC read with Rule 485 of the GR & CO (Civil) Vol-I, Mr. R.K. Mohanty strenuously urged that for withdrawal or compromise of a case specific power had to be given to the concerned advocate, the same being not a part of the general power by virtue of a Vaka¬latnama. As per Rule 485 of the GR & CO (Civil) Vol-I, no order can be passed by a Court on a petition for compromise unless the same is signed by the parties or pleaders filing the petition along with a Special Vakalatnama executed for the purpose. The said provision having not been followed, according to Mr. R.K. Mohanty, the Memo. Filed by the advocate for the appellants ought to have been rejected and therefore the order passed in the appeal being illegal the Court below ought to have recalled that. 7. The submissions of Mr. R.K. Mohanty are strongly repu¬diated by Mr. B.H. Mohanty, learned counsel appearing for oppo¬site party No.1 who was the plaintiff in the suit and respondent No.1 in the Title Appeal. He submitted that a counsel duly en¬gaged by the appellants to conduct the appeal had filed the Memo in question stating therein that the appellants did not want to proceed with the appeal. The appellate Court heard the counsel for both sides and being satisfied accepted the said Memo. and dismissed the appeal on that basis. Thus the order dismissing the appeal on the basis of the Memo. having not been illegal or irregular, the said Court rightly rejected the Misc.Case and the order passed in the Misc.Case or the Title appeal may not be varied by this Court. 8. This Court heard the learned counsel or the parties at length and meticulously perused the records produced. Admittedly the Title appeal was dismissed on the basis of a Memo. filed by the counsel for the appellants to the effect that the appellants were no longer interested to proceed with the appeal. According to the learned counsel for petitioner, without any specific instruction to withdraw the appeal, the said counsel was not empowered/authorized to file the Memo. as aforesaid. The said Memo. filed by the counsel for the appellants to the effect that the appellants were no longer interested to proceed with the appeal. According to the learned counsel for petitioner, without any specific instruction to withdraw the appeal, the said counsel was not empowered/authorized to file the Memo. as aforesaid. The said Memo. was neither accompanied by any affidavit nor was signed by the parties. 9. Order 3, Rule 4 CPC provides for appointment of advocates for conducting cases. An advocate so appointed has the authority to act on behalf of his client, even without specific consent of the client. But then such action is to be codified and restricted by certain conditions, viz., the advocate must act in good faith and for the benefit of his client. Otherwise, the action or the power to act ceases. It is always wise, prudent and proper to consult the client before taking action which may affect and/or prejudice the client, of course if there is time and opportunity so to do. 10. There is difference between the Vakalatnama filed before the subordinate Courts and that filed in High Court, viz., while the Vakalatnama filed in High Court empowers/authorizes the advocate to admit any compromise lawfully in the case, such term is not there in the Vakalatnama filed before the subordinate Courts, and as such an advocate should not exercise a power which is not conferred upon him. 11. Law is well settled that a party should not suffer for the inaction or over-action of the counsel. Even otherwise, giving concession on the question of facts by an advocate without specific instructions is obviously always unsafe, inasmuch as that may be wrong or erroneous and may affect the client. There¬fore, ethic demands that before according any concession, it is always prudent to obtain written instruction from the client. 12. The practice of filing Memorandum by advocates to the effect that the party does not want to proceed with litigation without the Memorandum being accompanied by an affidavit or a written instruction of the client should always be deprecated. Such Memorandum has to be filed by the party concerned through the counsel and not by the counsel. The counsel being permitted/empowered to represent a client cannot step into the shoes of the client. 13. In the case at hand, as would be evident from the discussions made above, the Memo. Such Memorandum has to be filed by the party concerned through the counsel and not by the counsel. The counsel being permitted/empowered to represent a client cannot step into the shoes of the client. 13. In the case at hand, as would be evident from the discussions made above, the Memo. in question had been filed by the advocate for the appellants. According to the petitioner who was looking after the appeal on behalf of both the appellants, no intimation was received by the appellants from their counsel about transfer of the appeal from one Court to another and was a waiting intimation from the counsel about the development of the case. The appeal had been posted to a date for hearing, but on the basis of a petition filed by the counsel for the appellants the date of posting was advanced and the Memo. in question signed by the counsel was filed intimating the Court that the appellants were no longer interested to proceed with the appeal. The Court below without insisting on compliance with the mandatory require¬ments of Order 23 CPC or examining whether the said Memo. had been supported by an affidavit or not, accepted the same and dismissed the appeal on that basis. The order though bona fide, does not satisfy the requirements of law. 14. The order passed on 6.5.2002, vide Annexure-1, dismiss¬ing the appeal, in view of the allegations made, cannot be sus¬tained. This Court has, therefore, no hesitation to quash the order Annexure-1, as also the order dated 15.7.2005 (Annexure-3) rejecting the Misc. Case filed by the petitioner for recalling the order Annexure-1, and orders accordingly. Consequently the Title Appeal which is restored to file has to proceed from the stage where it was prior to order Annexure-1. The Title Appeal being of the year 1999, this Court directs the Court below to dispose of the same expeditiously. The Writ Petition is disposed of. Petition disposed of.