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2015 DIGILAW 2733 (ALL)

MAMTA SHARMA v. RAJENDRA KUMAR

2015-09-03

MUKHTAR AHMAD, SUDHIR AGARWAL

body2015
JUDGMENT By the Court.—This is an application for recall of this Court’s order dated 20.5.2015whereby the appeal was dismissed for want of prosecution passing the following order; “1. Sri Bharat Singh, Advocate holding brief of Sri Neeraj Tripathi, learned Counsel for the appellant states that his instruction has been withdrawn by the appellant. Neither any Vakalatnama of any other Advocate on behalf of appellant has been filed nor the appellant herself is present in person in the Court. 2. In the circumstances, appeal is dismissed for want of prosecution. 3. Interim order, if any stands vacated.” 2. The application has been filed through Sanjay Singh, Advocate, Sri Pawan Kumar Shukla and Sri J.S. Kaurav, Advocate. Sri K.S. Tomar, learned Senior Advocate has argued the matter. He contended that the earlier Counsel Sri Neeraj Tripathi has no business to withdraw himself without intimating the appellant and this Court also did not issue any notice to the appellant to engage another Counsel, therefore, the order dismissing appeal need be recalled. He placed reliance on the decision of Apex Court in Malkiat Singh v. Joginder Singh, 1998(2) SCC 206 and a Single Judge decision of Jaipur Bench of Rajasthan High Court in Kuldip Kumar Lal v. Suman Rani, AIR 2012 Raj 175 . 3. The facts, in brief are that the appeal under Section 19 of the Family Court Act, 1984 has been filed against the judgment and decree dated 8.2.2001 passed by Sri R.D. Pandey, Judge Family Court, Agra rejecting appellant’s application under Order 9 Rule 13 C.P. C. passed in Misc. Case No. 12 of 1997 in Matrimonial Suit No. 68 of 1993. The plaintiff-respondent filed suit for divorce which was decreed ex parte by the Court below on 2.11.1996. The defendant-appellant’s application under Order 9 Rule 13 C.PC has been rejected by Court below recording a finding that despite of service of notice and information, neither the defendant-appellant nor her Counsel appeared and therefore, there was no justification to recall ex parte decree, particularly when in the meantime, the plaintiff-respondent has also re-married to one Smt. Madhuri on 2.3.1997. 4. Before this Court, Sri Neeraj Tripathi was the Counsel of the appellant. A statement was made by Sri Tripathi that his instruction was withdrawn by appellant. 4. Before this Court, Sri Neeraj Tripathi was the Counsel of the appellant. A statement was made by Sri Tripathi that his instruction was withdrawn by appellant. Here is not the case where Counsel made statement that he has no instruction in the matter on his own, but the statement was made positively to the effect that appellant has withdrawn instruction from the Counsel and still did not make any further arrangement by engaging another Counsel. In the restoration application, this statement of the Counsel has not been said to be false or incorrect. What is said actually in paras 3,4,5 and 6 read as under: Para-3: That the matter first appeal No. 2070 of 2002 was taken on hearing dated 13.5.2015. This date was not informed nor was notice to the petitioner though matter was adjourned for list in the next cause list as request was made by her counsel namely Shri Neeraj Tripathi.. Para-4: That, after the date 13.5.2015 against first appeal was taken on date 20.5.2015. About this date no petitioner was personally given the information for the date 20.5.2015. It is very surprise on 19.5.2015 near about 9.30 p.m. Her brother Shri D.S. Tripathi told the petitioner on telephone communication with Shri D.S. Tripathi and her counsel Shri Neeraj Tripathi. Then petitioner try to make the contract on the mobile communication between petitioner and her counsel Shri Neeraj Tripathi. She did not receive the satisfactory reply. It is submitted that assuming the communication taken place between brother of petitioner and her counsel Neeraj Tripathi that could not be said sufficient reason. It was not possible to come Allahabad by morning there being no arrayebility of transportation either by rail or by bus. Para-5: That it is very pertinent to note that a sufficient and handsome Advocate fees was paid ito Mr. Neeraj Tripathi advocate nor single coins towards advocate fees or what so every expenses incurred litigation was due. It was not just and proper withdrawing representation of conducting the case." Para-6: That the Counsel Shri Neeraj Tripathi without taking the consent without asking her in regard of not representing the matter further legally and statutory was proper and just. Shri Neeraj Tripathi advocate could not have withdrawn himself from representation of petitioner. In fact it is a case where the petitioner has been put on hazardous position which will ruin whole carrier of petitioner” 5. Shri Neeraj Tripathi advocate could not have withdrawn himself from representation of petitioner. In fact it is a case where the petitioner has been put on hazardous position which will ruin whole carrier of petitioner” 5. The averments contained in para-4 show that with regard to listing of case, on 19.5.2015, Counsel has informed Shri D.S. Tripathi at Gwalior but due to paucity of time, the appellant could not come to Allahabad. 6. It is also said that Sri Neeraj Tripathi without taking consent of petitioner could not have withdrawn without communicating the appellant. We have already noticed that as per the statement of learned Counsel, he has categorically said that his instruction was withdrawn by his client and on this aspect, nothing has been said in the entire application under consideration. 7. We also do not find any force in the contention of learned Counsel for the applicant that in such circumstances also, it was the duty of this Court to issue notice to appellant to engage another Counsel. 8. In the case of Malkiat Singh (Supra), the Court was considering the question whether, it is incumbent upon the Court to issue notice when Counsel himself says that he has no instruction. That was not a case where litigant itself has withdrawn instruction from Counsel appearing in the Court and thereafter did not make any alternative arrangement. The Court considered question of justification for condonation of delay in filing restoration application under Order 9 Rule 13 CPC on the ground that appellant had no information of the date and, therefore, could not file application within time, particularly when appellants’ Counsel himself withdrew from the case without any intimation to the litigant and litigant was not present in Court. That is not the case here. Here is a case where the litigant withdrew instruction from the Counsel and knowing it well that she is not represented in Court, did not make any arrangement. In such a case, it is not the duty of Court to issue notice to litigant to engage Counsel when litigant herself has withdrawn her Counsel. The aforesaid judgment, has therefore, no application in the case in hand. In the aforesaid case, Court took a view that since litigant had no information whatsoever about the case, therefore, notice ought to have been issued. It is evident from para-7 of the judgment. The aforesaid judgment, has therefore, no application in the case in hand. In the aforesaid case, Court took a view that since litigant had no information whatsoever about the case, therefore, notice ought to have been issued. It is evident from para-7 of the judgment. The relevant extract thereof is quoted as under; “....There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day.” 9. In the present case, it is not a case where appellant was not aware of the proceedings of case. What actually transpired between appellant and her Counsel are the facts within their personal knowledge. The Counsel has made a statement of fact before this Court and that is not said to be false or incorrect in the entire application. Thus in such type of case, we are clearly of the view that there was no duty of this Court to issue notice to litigant who herself has withdrawn instruction from the Counsel appearing in the case, but has not taken care to make alternative arrangement. 10. In the circumstances, we find that the grounds taken in the application for recall of the order are unsustainable. 11. Application is accordingly rejected.