Unauthorized withdrawal of a civil suit by counsel, misdirection by the trial judge in dismissing revival application, and the court's authority to allow substitution of legal representatives and condone delay.

1. This mater has brought to light utter neglect and complete mishandling almost by all concerned with the proceedings arising out of the civil suit, the details of which are mentioned herein below.

2. Civil suit (suit No.321/2014) was instituted by Poonam Pandey (wife of Om Babu Pandey) and Rama Nand Bajpai joining as first and second plaintiffs in 1993, seeking reliefs in the nature of partition, separate possession, etc. The respondents herein were impleaded as defendants. The suit had reached advanced stages when on 19.03.2014 the Additional District Judge (ADJ) in seisin of the matter recorded the proceedings as under:-

“Present: Shri Manohar Lal Sharma, Advocate Counsel for plaintiff with plaintiff in person. Shri Parvender Kumar Sharma, Advocate counsel for defendants No.1(a) to 1(c). Shri Rakesh Kumar Sharma, Advocate counsel for defendants No.4 to 6. After it is pointed out to the counsel for plaintiff that plaintiff has not filed on record any document of title in his favour as whose predecessor or successor in interest they are claiming to pursue this remedy. Counsel for plaintiff wants to make statement on instructions. Counsel appearing on the opposite sides have no objection to the same. Separate statement of counsel for plaintiff under instructions recorded. In view of the same, the suit is permitted to be withdrawn. File be consigned to record room.”

3. On 17.04.2014, the two aforesaid plaintiffs moved an application under Section 151 of the Code of Civil Procedure, 1908 (CPC) taking exception to the dismissal of the suit as withdrawn by the counsel arbitrarily and without instructions, taking a clear position that neither of the two plaintiffs were present before the court on 19.03.2014. While the application seeking revival of the proceedings in the suit was pending, the first said plaintiff (Poonam Pandey) died.

The matter was thereafter pursued by her legal heirs. The application for revival, however, was dismissed by the ADJ on 10.11.2014 recording the reasons as under:-

“Present: Shri Kapil Kumar Tyagi, Advocate counsel for applicant with applicant. An application has been moved on behalf of legal heir of deceased plaintiff saying that order of withdrawal on the statement of counsel has put them into great difficulty as the withdrawal was without instructions. Though, the complaint has been filed against the counsel in the Bar Council and the prayer is not to a Judge but to God that whatever legal order has been passed may be permitted to be changed because it has caused hardship to the applicant. I am sorry to say that though the job of the Judge is like that of God because the Judge through his decision also determines sometime, the destiny of the people but the Presiding Judge is not restored with the power like God and the discretion of God. He has to decide the cases on the basis of law only and as per the Oath of Office, administered to him and sometimes there may be clash between law and justice. Under the present circumstances to the case, I feel constrained to say that the law is not in favour of applicant though the counsel for applicant has cited a judgment at Bar reported in 2009 (2) FLC 491, titled as Dwarika Prasad vs. Nirmala & Others, that fraud has been played upon court. Perusal of the record shows that no fraud has been played upon the Court.

The counsel who has argued on findings that too commenting upon the proceedings of the case on merits will be out of place and while disposing off the application but to suffice to say record as is stands today at the time of final argument, may have resulted into order not to the liking of the parties. Hard cases should not be the basis of laying down the law because if the hard cases are allowed to determine the law, the whole shape of the law to be followed, will change if the hard case will become the basis of change of law. I am constrained to dismiss with a great brief the application of the applicant, admittedly no documents of title have b