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2015 DIGILAW 849 (HP)

Kaushalya Devi v. Kaushalya Devi

2015-07-08

TARLOK SINGH CHAUHAN

body2015
JUDGMENT Tarlok Singh Chauhan, J. 1. The respondents have moved this application, under sections 73 and 45 of the Indian Evidence Act, 1872, for comparison and examination of their signatures and handwritings on the power of attorney, caveat petition and affidavit etc. 2. It is averred that appellant-non-applicant had filed regular second appeal and alongwith it an application under order 39 Rules 1 and 2 CPC read with section 151 CPC bearing CMP No. 169 of 2007 had also been preferred for restraining the respondents from interfering in the suit land. The appeal and the miscellaneous applications were taken up for disposal on 3.5.2007. The appeal was admitted and whereas in the application the order for maintaining the status quo existing on the date was passed. Thereafter in paras 3 to 5 of the application certain serious allegations have been made against the Advocate (who represented the applicants-respondents and shall hereinafter be referred to as Shri “A”) in the following terms:- “3. That in this context, it is submitted that the learned counsel Sh. “A” contested the matter on behalf of the respondents. Not only this, the learned counsel filed a Caveat Petition vide No. (P)-55/2007 dated 22.01.2007 under Section 148-A of Code of Civil Procedure read with Section 151 alongwith Affidavit and Power of Attorney on behalf of the respondents. 4. That the respondents were surprised when they received the letter dated 07.03.2012 from the learned counsel Sh. “A” that an application under Order 39 Rule 2-A read with Section 151 of Code of Civil Procedure was filed by the learned counsel of the appellant for willful disobedience of the order of this Hon’ble High Court. 5. That the humble respondents submit that Sh. “A” Counsel appeared and contested the case/matter was neither given any Power of Attorney nor instructed by any of the respondent to file the above stated Caveat Petition, which clearly shows that the false/ fake documents were prepared, which were filed before this Hon’ble Court. Certified copy of the Power of Attorney/Vakalatnama is annexed as Annexure A-1 and certified copy of caveat petition alongwith affidavit is annexed as Annexure A-2.” 3. It is then averred that the applicants with the permission of this court engaged new counsel to contest the matter and also gave power of attorney in their favour. Certified copy of the Power of Attorney/Vakalatnama is annexed as Annexure A-1 and certified copy of caveat petition alongwith affidavit is annexed as Annexure A-2.” 3. It is then averred that the applicants with the permission of this court engaged new counsel to contest the matter and also gave power of attorney in their favour. However, the applicants were not satisfied even with these counsels and after obtaining NOC engaged the present counsel. Lastly, it is contended that the appeal and the application were taken up for disposal by this court and was dismissed on 5.6.2014. Therefore, it has become necessary to examine the signatures of the applicants-respondents on the caveat petition and power of attorney given to their earlier Advocates. 4. The appellant-non-applicant has filed reply to the application, wherein preliminary objection has been taken to the effect that no case was made out for invoking sections 45 or 73 of the Evidence Act or for leading expert evidence when the facts of the case are clear and despite knowledge the respondents-applicants had disobeyed and flouted the orders of the court. It is further contended that the application has been filed with a view to delay the decision of the case and is malafide and therefore, deserves to be dismissed. Even on merits, the application has been opposed and it is specifically averred that power of attorney and the caveat petition had been filed in this case under the instructions of the applicants. 5. I have heard the learned counsel for the parties and have also gone through the records of the case. 6. The application filed by the applicants makes no head or tail and it appears that because the applicants are facing proceedings under order 39 Rule 2-A CPC, therefore, they now want to prove the aforesaid si gnatures and establish that they had never engaged Sh. “A” as their counsel and were therefore not aware of the orders of status quo passed by this court on 3.5.2007. 7. To understand the background of the case one has to delve into the records. A caveat petition allegedly on behalf of the applicants was filed in the Registry of this court under the signatures of Sh. “A” on 22.1.2007, whereas the appeal was filed two months later to this on 20.3.2007. 7. To understand the background of the case one has to delve into the records. A caveat petition allegedly on behalf of the applicants was filed in the Registry of this court under the signatures of Sh. “A” on 22.1.2007, whereas the appeal was filed two months later to this on 20.3.2007. When the appeal came up for consideration before this court on 26.3.2007, the followi ng order came to be passed:- “Caveat Petition No. 55 of 2007 This caveat petition is allowed. Copies of the grounds of appeal and application have been supplied to the learned counsel appearing for the Caveators. At the request of learned vice counsel appearing for the appellant, list the appeal alongwith stay application after three weeks.” 8. On 11.4.2007, Sh. “A” addressed a letter to the petitioners, contents whereof read as under:- “Madam, That you had engaged me on 22.1.2007 as a counsel for filing a Caveat Petition under Section 148-A of CPC on your behalf in the Hon’ble High Court of Himachal Pradesh at Shimla in a matter i.e. Kaushalya Devi & Others vs. Kaushalya Devi for defending the Regular Second Appeal which would be expected to be filed by non-caveator/plaintiff Kaushalya Devi W/o Bishan Dass R/o Village Balehan, Up-Muhal Narwan, Tehsil Dharamshala, Distt. Kangra (HP). The said caveat was filed by me on your behalf in the Hon’ble High Court of Himachal Pradesh and the same was registered as Caveat Petition No. 55 of 2007. You have paid Rs. 2,000/ only. 2. That in the second week of March, 2007 Smt. Kaushalya Devi W/o Bishan Dass appellant/plaintiff had filed RSA bearing No. 110/07 alongwith CMP bearing No. 169/07 under Order 39 Rule 1 & 2 read with Section 151 CPC praying therein injunction against you till the pendency of appeal. The said appeal was listed before the Hon’ble High Court of Himachal Pradesh for admission on 26.3.2007. Since I had filed Caveat Petition on your behalf alongwith Power of Attorney duly signed by all of you authorizing me to appear and defend the said Regular Second Appeal which would be filed by the plaintiff. Therefore, no notices were required to be issued to you. I appeared in the Hon’ble High Court on that day. 3. That I have duly intimated you about the filing of the RSA in the Hon’ble High Court of Himachal Pradesh. Therefore, no notices were required to be issued to you. I appeared in the Hon’ble High Court on that day. 3. That I have duly intimated you about the filing of the RSA in the Hon’ble High Court of Himachal Pradesh. I have also intimated you about the filing of reply to the CMP, I have drafted the reply at your instance and again requested you for putting your initials on the said reply and affidavit annexed with the application. Despite several intimations you did not respond nor came to my office for doing the needful. 4. That the Caveat Petition was filed at your instance and Power of Attorney was also duly signed by all of you. Thereafter, I appeared on your behalf before the Hon’ble High Court of Himachal Pradesh for defending the RSA which has been filed by the appellant. 5. That all of you did not respond nor visited my office for taking further course of action in the matter which clearly amounts to negligence on your part. Any order passed against you on the said CMP No. 169/07 annexed with RSA No. 110/07 would be entirely at your risk and cost and I will not be responsible for the same. 6. That for defending RSA you had not paid the counsel fee to me till date. Therefore, you are also called upon to pay a sum of Rs. 11,000 (Rs. Eleven Thousand) only being the counsel fee for defending RSA No. 110/07 with CMP No. 169/07 within a period of 15 days from the receipt of this notice/intimation. Yours faithfully Sd/- (Sh. “A”) Advocate. 9. On 3.5.2007 the court passed the following order:- “Heard learned counsel for the parties. Admit on the substantial questions of law as filed with the appeal. CMP No. 169 of 2007. This application has been filed by the appellant with the prayer that the respondents may be restrained from raising any construction. I have heard the learned counsel for the parties. It is directed that the parties to this appeal shall maintain status quo as existing today qua the nature and possession of the land as described in the application during the pendency of the appeal. The application is disposed of. Dasti copy on usual terms.” 10. On 7.3.2012, the appellant handed over a copy of application under Order 39 Rule 2-A CPC to Sh. The application is disposed of. Dasti copy on usual terms.” 10. On 7.3.2012, the appellant handed over a copy of application under Order 39 Rule 2-A CPC to Sh. “A”, Advocate who was then representing the applicants. Upon receipt of the copy, Sh. “A” wrote a registered letter to the applicants informing them about this fact. 11. On 22.3.2012 this court passed the following order:- “Learned counsel appearing for the respondents seek permission to withdraw his power of attorney on behalf of the respondents. Permission granted. Kaushalya Devi and Sudesh Kumari respondents are present in Court. They pray for and are granted three weeks time to engage a counsel on their behalf. Order has been communicated to the respondents in the Court today. List after three weeks.” 12. The original order sheet of the even date shows that this order has been duly acknowledged and in token thereof all the three applicants have appended their signatures. It is thereafter that the applicants engaged new Advocates. However, even those Advocates were superseded by the present Advocate. 13. The applicants have now made allegations to the effect that Sh. “A” had though appeared and contested the matter on their behalf, but he had neither been instructed nor given power of attorney and therefore the signatures on these documents should be compared and examined by an expert. 14. In order to test the veracity of such submission, it would be seen that on 22.3.2012 though the applicants were present in person before this court, yet they never choose to level any allegation against Sh. “A” that he had not been authorized to put in appearance on their behalf nor had they executed any power of attorney or signed the caveat petition. They only sought time to engage a counsel because Sh. “A” expressed his inability to continue with the case. 15. Not only this Sh. “A” had in fact earlier to this on 16.3.2012 filed an application under order 3 Rule 4, sub-rule(2) CPC for withdrawal of power of attorney filed on behalf of the applicants. This application was registered as CMP No. 200 of 2012 and contains the following averments:- “An application under Order 3 Rule 4 Sub Rule 2 for the withdrawal of Power of Attorney filed on behalf of Respondents No. 1 to 3. MAY IT PLEASE YOUR LORDSHIPS:- 1. This application was registered as CMP No. 200 of 2012 and contains the following averments:- “An application under Order 3 Rule 4 Sub Rule 2 for the withdrawal of Power of Attorney filed on behalf of Respondents No. 1 to 3. MAY IT PLEASE YOUR LORDSHIPS:- 1. That the applicant has been representing Respondents No. 1 to 3 in the above noted Regular Second Appeal pending before this Hon’ble Court. He has been duly authorized to defend the said Regular Second Appeal on behalf of respondents No. 1 to 3. The applicant had been informing the respondents from time to time about the case through registered post. 2. That an application under Order 39 Rule 2A read with Section 151 CPC had been received through the counsel for the appellant. This fact was duly brought to the notice of Respondents No. 1 to 3 through registered letter on 9/3/2012 which was duly received. 3. That on 13/3/2012 the Respondent No.3 alongwith her husband visited the office of the applicant and had taken one set of record of the case. 4. That the respondents did not impart any instructions for defending the case nor thereafter visited the office of the applicant, hence the applicant has no other option except to withdraw of Power of Attorney and seek the leave of this Hon’ble Court for the withdrawal from the aforesaid case. It is, therefore, prayed that this application may kindly be allowed and leave may be granted for the withdrawal of the Power of Attorney on behalf of Respondents No. 1 to 3 in the interest of justice.” 16. No doubt, the applicants while filing the reply to the application, under order 39 Rule 2-A CPC had submitted that they were unaware of the restraint order passed by this court as the same was never conveyed to them, but then while filing an application for early hearing being CMP No. 1127 of 2012, it has been specifically stated as follows:- “The applicants have been restrained from raising the construction. It is submitted that the applicants are raising the construction on their own land but under the garb of interim order, the non-applicant is not allowing the applicants to proceed with the construction. It is submitted that the construction material is lying waste and the cement bags have already become useless. It is submitted that the applicants are raising the construction on their own land but under the garb of interim order, the non-applicant is not allowing the applicants to proceed with the construction. It is submitted that the construction material is lying waste and the cement bags have already become useless. The cost of the construction is going high day by day and as such, the applicants are suffering both fina ncially and mentally.” 17. Nowhere in the aforesaid application had the applicants mentioned about the fact that they were not in the knowledge of the orders passed by this court and significantly this application has been verified on 2.10.2012, but has been actually filed on 15.10.2012. 18. In this background, the first and foremost question required to be determined is as to whether Sh. “A” had in fact been engaged by the applicants. A perusal of the caveat petition and thereafter the letter sent by Sh. “A” on 11.4.2007 and 7.3.2012 coupled with the application for withdrawal from the proceedings on behalf of Sh. “A” (CMP No. 202 of 2012), which was filed on 16.3.2012 and the presence of all the applicants before this court on 22.3.2012 alongwith Sh. “A” establishes beyond reasonable doubt that Sh. “A” had in fact been engaged by the applicants. 19. It is otherwise difficult to believe as to why Sh. “A” without instructions from the applicants would of his own put in appearance on their behalf and oppose the passi ng of any interim order when the case was for the first time listed before this court on 26.3.2007. In case Sh. “A” had not been engaged by the applicants as is now being alleged then what prevented them from pointing out this fact to this court when they themselves were present in the court alongwith Sh. ”A” on 22.3.2012. If Sh. “A” had not been engaged as counsel then how was he in possession of the records of the case and on what basis did he file a detailed caveat petition and also put in appearance on behalf of the applicants. This aspect assumes significance because it is not at all the case of the applicants that they were totally unaware of the appeal having been preferred by the non-applicant. 20. This aspect assumes significance because it is not at all the case of the applicants that they were totally unaware of the appeal having been preferred by the non-applicant. 20. The practice of frequently changing the Advocates and then filing applications which in some manner casts aspersion and assassinate the person and character of the earlier counsel have to be deprecated with a heavy hand for the purity of administration of law and salutary and healthy practice. 21. It is not fair to the court to change counsels frequently and file petitions because the counsel engaged subsequently may not be aware of what had transpired in the court at the earlier occasions. It may also amount to embarrassment to the court to hear the grievances of the party which has no basis and more particularly where a party does not furnish any material to substantiate the grounds taken in the subsequent applications. 22. The conduct of such a party is reprehensible and deserves not only to be deprecated but censured. A litigant cannot be permitted to drag the court in such a manner and force it to decide the case in a particular manner he wants. 23. This court expresses its grave concern over the procedure adopted by the applicants for the redressal of their grievances. It is salutary to note that the court spends valuable time in deciding the cases and this practice of changing the Advocates frequently and thereafter filing the petitions only wastes the valuable time of the courts and has therefore to be deprecated and dealt with sternly. 24. The practice of filing applications and making uncharitable remarks against the Advocate, who was previously conducting the matter is all the more reprehensible. To my mind, even a lawyer must be very reluctant to take up a brief of this nature. In case for some reasons a change of lawyer is unavoidable, the newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified from the lawyer earlier conducting the case and only thereafter file application of the present kind. 25. Another fact, which cannot be ignored is that in case Sh. In case for some reasons a change of lawyer is unavoidable, the newly engaged lawyer would owe it to himself and to the profession to have the statement of facts duly verified from the lawyer earlier conducting the case and only thereafter file application of the present kind. 25. Another fact, which cannot be ignored is that in case Sh. “A” was a total stranger to the applicants, then why on his asking did they come to Shimla, then stand with him in the court on 22.3.2012 and still did not chose to make any complaint before this court at that time or within some reasonable time thereafter and why it is only when the third counsel was engaged that these allegations have been made that too after a period of three years, is not forthcoming. It was incumbent upon the applicants to satisfy this court that Sh. “A” had not been engaged as counsel by them. The applicants by moving the present application to say the least have abused the process of law and that apart, I even find the contents of the application to be absolutely false. 26. Since this court has not agreed with the contention of the applicants that they had not engaged Sh. “A” as their counsel, who had not only appeared on their behalf but also filed a caveat petition, therefore, necessity or requirement of examining the signatures and handwritings on the documents or sending them for comparison to the expert does not at all arise. 27. In view of the aforesaid discussion, I find no merit in this application and the same is accordingly dismissed with costs of Rs. 10,000/-. Before parting, it only needs to be clarified that the dismissal of this application shall not come in the way of the applicants in proving and establishing the contents of this application by leading clear, cogent and convincing evidence, which needless to say, if led, shall be considered on its own merit.