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1998 Supreme(Cal) 151
IN THE HIGH COURT AT CALCUTTA
AMITAVA LALA, J.
Purnima Dutt & Ors. – Petitioners
Vs.
Ratan Kanti Soor & Ors. – Respondents
G.A. No.4 of 1998 & Suit No. 932 of 1981
Decided on: March 30, 1998
Advocate Appeared:
Mr. P.K. Das and S. Sen for the Petitioners
Mr. Rudradeb Chowdhury for the Respondents
A party cannot disown its Advocate at any time and seek relief for the negligence of the Advocate. A litigant is responsible for following up with their Advocate and cannot rely solely on the Advocate to inform them about the status of the case.
Headnote:
SPECIFIC RELIEF ACT, 1963 - SECTION 6 - EX PARTE DECREE - SETTING ASIDE - ESTOPPEL - NEGLIGENCE OF ADVOCATE - LIMITATION - TERMS OF SETTLEMENT - COSTS - EXECUTION OF DECREE - RECEIVER - SPECIAL OFFICER - REMUNERATION
Fact of the Case:
The defendants applied to recall/set aside an ex parte decree passed against them in a suit under Section 6 of the Specific Relief Act, 1963. They claimed they were unaware of the decree until the Receiver visited the premises to take possession. They had engaged an Advocate-on-record who died before filing the written statement, and they were not informed about it.
Finding of the Court:
The court found that the defendants did not provide sufficient material particulars to support their application. They had signed a vakalatnama in May 1996 but did not follow up with their Advocate or make any inquiries until after the decree was passed. The court also found that the defendants were estopped from challenging the decree as they had undertaken to hand over the decreetal properties to the Special Officer by 31st March 1998.
Issues: 1. Whether the defendants had sufficient cause to set aside the ex parte decree? 2. Whether the defendants were estopped from challenging the decree? 3. Whether the defendants were negligent in not following up with their Advocate? 4. Whether the suit was barred by limitation?
Ratio Decidendi: 1. The court held that the defendants did not provide sufficient material particulars to support their application. They had signed a vakalatnama but did not follow up with their Advocate or make any inquiries until after the decree was passed. 2. The court held that the defendants were estopped from challenging the decree as they had undertaken to hand over the decreetal properties to the Special Officer by 31st March 1998. 3. The court held that the defendants were negligent in not following up with their Advocate. They had engaged a skilled Solicitor's firm and could have obtained information about the status of the case from their office. 4. The court held that the suit was not barred by limitation as it was filed within the 15-year limitation period prescribed under Section 6 of the Specific Relief Act, 1963.
Final Decision: The court dismissed the defendants' application to recall/set aside the ex parte decree. It also directed the defendants to pay a further 300 G.Ms. to the Special Officer towards his final remuneration.
This is an application for recalling and/or setting aside the ex parte decree passed by a Single Bench of this Hon'ble Court on 9the December, 1996 and also for various consequential reliefs.
2. Defendant No.2 made this application on his behalf and on behalf of defendant No.1. The defendant No.3 is not party to this application. The petitioners/defendants contended that they came to know about the ex parte decree for the first time on 6th December, 1997 when the Receiver was appointed in the execution proceeding visited the premises for the purpose of taking delivery of the possession.
3. They further contended that in April 1996 the petitioners contacted with their the then Advocate-on-record, Mr. J. Roychowdhury of M/s M.K. Roychowdhury & Co. who, in turn, briefed one of the Counsel of this Court to draw a written statement on their behalf.
In early May 1996 the petitioner attended the office of M/s. M.K. Roychowdhury & Co. and signed the written statement and vokalatnama in favour of M/s M.K. Roychowdhury & Co.
4. It was also contended that the petitioner was surprised to learn that Sri Roychowdhury died on 8th July, 1997 and M/s M.K. Roychowdhury & Co. being a sole proprietorship firm stood dissolved.
5. The petitioners were also informed that Sri Roychowdhury being seriously ill, had not attended his office for about 7/8 months before the date of his demise. Nobody was able to furnish any particulars in the office of M/s M.K. Roychowdhury & Co. as to whether the written statement had been filed or not. Thereafter he has made enquiry through another Advocate and ultimately found that the written statement had not been filed in this Court.
6. One important factor is that by virtue of a decree, the decree-holder is vested with a right and such decree holder is naturally in a privileged position before a Court of law than a defaulting party. Therefore an application by such defaulting party has to be armed with Material particulars.
7. There is no explanation forthcoming as to what the petitioners/defendants did in between May 1996 when they have signed the vokalatname in favour of M/s. M.K. Roychowdhury & Co. and decree passed on 9th December, 1996 as well as from the date of the decree and the date of death of J. Roychowdhury representing M/s M.K. Roychowdhury & Co. on 8th July, 1997. Unless and until such explanations with its full force are for the coming application will be lacking with material particulars on account of sufficient cause. This is more important because it is duty of the petitioners to remove the cloud of suspicion from the mind of the Court.
8. The another important feature is applicability of principle of estoppel in the following circumstances. The defendant No.2 in the meeting held by the Receiver on 6th December, 1997 under an order of a Single Bench of this Hon’ble Court in an execution proceeding expressly stated that they would hand over the decreetal properties to the Special Officer by 31st March, 1998. The petitioners have made an averment in the reply that such undertaking was given under coercion and undue influence and he should not be held to the same. It is very difficult to accept such case and I am not at all convinced with such submission. I have a reason of disbelieving such submission. The Special Officer, after all, an Officer of the Court as such he cannot Perform an unjust duty which may cause prejudice to a litigant. Moreover, if at all the Special Officer purported to have been unjust he would have been unjust by immediate eviction but when Special Officer in the meeting dated 6th December, 1997 had given about 4 months time to the defaulting party i.e. upto 31st March, 1998 to hand over decreetal properties to him, such Special Officer cannot be said to be unjust. The another aspect is that the petitioner did not take the aforesaid plea in the application but as and when the respondent/decree-holder took such plea in the affidavit-in-opposition, for the first time, took
