Govinda Bhagoji Kamable & others vs Sadu Bapu Kamable & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2004 Supreme(Bom) 1078

IN THE HIGH COURT OF BOMBAY
Oka Abhay S., J.
Govinda Bhagoji Kamable others .... Appellants.
Versus
Sadu Bapu Kamable others.... Respondents.
Second Appeal No. 755 of 2004 along with Civil Application No. 1200 of 2002 Civil Application No. 1398 of 2003, decided on 2-8-2004.
Advocates appeared :
A.R. Shaikh, for appellants.
M.L. Patil, for respondents Nos. 1-a to 1-h, 2 3.
Javeed Hussein, for respondent No. 5.

Headnote:Ad-interim relief - Grant of ad interim relief. - Ad interim relief granted by High Court "in meanwhile" after issuance of notice, continues to operate until event of hearing of application. - The phrase ``in the meanwhile’’ is used in the order granting stay. The dictionary meaning of the word meanwhile is ``till happening of a particular event’’ or ``until something expected happens’’. When the stay was to be operative in the meanwhile, it was to operate upto happening of a particular event. The said event was hearing of the application after service of notice to the respondents. Whenever this Court intends to grant ad-interim relief limited to a particular date, it is always mentioned in the order very specifically that the ad-interim relief will be operative till a particular date. When this Court issued notice and granted ad-interim relief in the meanwhile, it was obviously intended that the ad-interim relief will operate till the application was heard by this Court after service of notice. When this Court makes notice returnable on a particular date, it cannot be argued that the date mentioned in the notice is the date on which the application will be positively heard. The returnable date mentioned in the order is the returnable date fixed for the notice. It is a date fixed for appearance of the parties. It is not necessary that on the returnable date fixed by this Court, the case appears on the Board. When this Court issued notice to the respondents and granted ad-interim relief ``in the meanwhile’’, it is obvious that the ad-interim relief was to operate till the Court heard the parties on the basis of the notice issued or till order of stay was specifically vacated by this Court. Whenever, the Court intends that the ad-interim relief will operate till the returnable date, it is specifically mentioned in the order that ad-interim relief will operate upto a specific date or till the returnable date of notice. When adinterim relief is granted ``in the meanwhile’’ after issuance of notice to the Contesting Party, the said relief continues to operate until the event of hearing of the application. The order cannot be read to mean that the interim relief is operative only till the returnable date of the notice.
Civil Procedure Code, 1908 - Order 3, Rule 4 - Withdrawal of vakalatnama . - No Advocate can withdraw his Vakalatnama without obtaining leave of Court. - Once an Advocate files his vakalatnama the same continues to be in force till he obtains leave of the Court to withdraw his vakalatnama. This Court in exercise of power under Section 34(1) of the Advocates Act, 1961 have framed Rules which lay down the procedure for withdrawal of appearance by an advocate. In view of the provisions of the Civil Procedure Code and the Rules framed by this Court, no Advocate can withdraw his vakalatnama without obtaining leave of the Court. Till such time leave is not granted, the Advocate concerned continues to represent his client. Time and again it is noticed that some of the Civil Courts and the District Courts proceed on the assumption that once an Advocate files "no instruction pursis" he is automatically discharged as an Advocate representing his client. The said practice of the Courts taking cognizance of a no instruction pursis which is filed without following the procedure laid down by the rules framed by this Court is to be deprecated. An Advocate cannot simply walk out of a proceeding only by filing such no instruction pursis. He owes a duty to his client to appear for him in the proceedings till his appointment is terminated by an order of the Court. In view of the express provisions of the said Code and the Rules framed by this Court, the vakalatnama of the Advocate continues until leave is granted by the Court concerned in favour of the Advocate to withdraw his vakalatnama. In this case mandatory procedure laid down by the aforesaid Rules was not followed. There was nothing on record to show that before filing no instruction pursis, the Advocate had given any intimation in writing to the appellants. It is not a case where the appellant had intimated to the Advocate to withdraw his appearance. It is not reflected from the order that the Appellate Court granted leave to the Advocate to withdraw his appearance. When the appeal preferred by the Appellant was fixed for hearing and the advocate who was supposed to argue the appeal was present, the Court could not have dismissed the appeal for default only on the basis of the no instruction pursis filed by the Advocate. If the Court intended to treat no instruction pursis as an application for discharge, the Court ought to have directed the Advocate to give intimation in writing to his client as required by Rules. If the Court intended to grant discharge to the Advocate, notice to the appellant ought to have been issued by the Court after accepting the no instruction pursis. This was not done by the Appellate Court. If the Advocate was to apply for leave to withdraw Vakalatnama, the Court had discretion to refuse the leave as the appeal was already fixed for hearing . The Court could have imposed condition while granting leave. Therefore, the appeal ought not to have been dismissed for default on filing of such pursis. In the circumstances, a case is made out for restoration of the appeal.

JUDGMENT - OKA ABHAY S. J.:-On the request made by the learned Advocate appearing for the appellants, names of respondents Nos. 4 and 6 are deleted at the risk of the appellants.

2. On 15th June, 2004 notice was issued by this Court for final disposal of the appeal at admission stage. I have accordingly heard Shri Shaikh, Advocate appearing for the appellants and Shri M.L. Patil, Advocate appearing for the respondents Nos. 1-A to 1-H, 2 and 3. The order impugned in this appeal is the order dated 14th September, 1999 by which the appeal preferred by the appellants was dismissed for default. The order passed by the appellant Court reads thus:

"Appellants absent when called. Their Counsel has filed no instruction pursis at Exh. 26. Hence the appeal is dismissed for default of appellants. It be filed."

3. The learned Advocate for the appellants submitted that only because no instruction pursis was filed by the Advocate appearing for the appellants, the appeal was dismissed for default. He submitted that the Advocate appearing for the appellants had not obtained a valid discharge and therefore, merely because no instructions pursis was filed by the Advocate, the Advocate was not absolved of the responsibility of arguing the appeal on merits.

4. The learned Advocate appearing for the respondents has supported the impugned order.

5. The following substantial question of law arises :

Whether the Appellate Court could have dismissed the appeal for default on the basis of the pursis of no instruction filed by the Advocate appearing for the appellants when the Advocate for the appellants had not obtained discharge?

I have heard the learned Counsel appearing for the parties on the aforesaid substantial question of law.

6. It appears from the impugned judgment and order that the Advocate appearing for the appellants did not apply for leave of the Court to withdraw his Vakalatnama. It will be necessary to examine the relevant provisions of the Code of Civil Procedure, 1908 ("Code" for short), in that behalf. Rule 4 of Order III of the Code reads thus :

4. Appointment of pleader.-(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose of such person by a document in writing signed by such person or by his recognised agent or by some other person duly authorized by or under a power of attorney to make such appointment.

(2) 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.

Explanation-For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit.--

"................................................................"

7. It is therefore very clear from the said Rule that once Advocate files his Vakalatnama, the same continues to be in force till he obtains leave of the Court to withdraw his Vakalatnama. It is also necessary to refer to the rules framed by this Court in exercise of power under section 34(1) of the Advocates Act, 1961. The said Rules lay down the procedure for withdrawal of appearance by an Advocate. Rule 8(4) of the said Rules provides that when an Advocate who has filed a Vakalatnama for a party wishes to withdraw his appearance he shall serve a written notice of his intention to do so on his client at least seven days in advance of the case coming up for hearing before the Court. The Rule further provides that the Advocate shall file a note in writing requesting the Court for permission to withdraw appearance and shall also file along with the note the letter of the client instructing him to withdrawn his appearance or a copy of the intimation given to the client as above together with its written acknowledgement by the client. After such note in writin

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