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1999 Supreme(Raj) 571
High Court Of Rajasthan
Judgename : Mohd. Yamin
Motilal - Appellant
Versus
L.Rs.of Late Poonampuri - Respondent
Civil Revision Petition No. 345 of 1994
Decided On : 08/16/1999
Himanshu Maheshwari, for the Appellant
L.R. Mehta, for the Respondents
The appointment of a pleader under Order 3, Rule 4(2) of the CPC shall 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.
Headnote:
INJUNCTION - DECREE - NULLITY - JURISDICTION - ERROR - CPC, ORDER 3, RULE 4(2) - APPOINTMENT OF PLEADER - CONTINUANCE OF AUTHORITY - NOTICE BEFORE PLEADING NO INSTRUCTIONS - LEGAL REPRESENTATIVES OF DECEASED DEFENDANT - NECESSITY TO BRING ON RECORD - DISCRETIONARY ORDER OF TRIAL COURT - INTERFERENCE BY APPELLATE COURT.
Fact of the Case:
Poonampuri, the son of Mohanlal, filed a suit for cancellation of a decree obtained against his father, alleging that it was a nullity as the counsel who pleaded no instruction never gave any notice to Mohanlal before doing so and that the legal representatives of Mohanlal were not brought on record. The trial court refused to grant an injunction, but the appellate court reversed the order and granted an injunction.
Finding of the Court:
The court held that the decree was not a nullity and that the appellate court did not commit any error by granting an injunction. The court also held that the appointment of a pleader under Order 3, Rule 4(2) of the CPC shall 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.
Issues: 1. Whether the decree obtained against Mohanlal was a nullity. 2. Whether the appellate court erred in granting an injunction. 3. Whether the appointment of a pleader under Order 3, Rule 4(2) of the CPC continues to be in force until determined with the leave of the Court.
Ratio Decidendi: 1. The court held that the decree was not a nullity as the counsel who pleaded no instruction continued to be the counsel as his power was not terminated as per provisions of Order 3, Rule 4(2), CPC. 2. The court held that the appellate court did not commit any error by granting an injunction as the learned appellate Judge has interfered after seeing the merits and demerits of the order of learned trial Judge. 3. The court held that the appointment of a pleader under Order 3, Rule 4(2) of the CPC shall 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.
Final Decision: The revision petition was dismissed and the trial court was directed to decide the suit as expeditiously as possible preferably within a period of six months from the date of receipt of a copy of this order.
Mohd. Yamin, J.-This is a revision against the order of learned Additional District Judge No. 2, Jodhpur dated 11-1-1994 by which he issued injunction in Civil Misc. Appeal No. 320/93 by setting aside the order of learned Munsif dated 4-12-1993.
2. I have heard the learned counsel for both the parties.
3. The case has a checkered history. One Mohanlal alias Mohanpuri, who was father of Poonampurl-respondent, was tenant of Motilal and Smt. Chhota. The shop in question was let out to him on 28-10-1955 on a monthly rent of Rs. 55/-. Till his death Mohan Lal continued to be a tenant of this shop and carried on his business of halwai. Mohanlal was also carrying on business with his father in the shop. Motilal and Smt. Chhota filed a suit against Mohanlal and Bhanwarlal for eviction sometime in 1967. Both of them filed ajoint written statement on 14-12-1967. Issues were framed on 3-6-1969. Counsel named Shri Inder Chand Maloo as their counsel but he pleaded no Instructions on behalf of Mohanlal on 22-7-1967. Hence suit proceeded ex parte against Mohanlal. Mohanlal, during the pendency of this suit, died on 13-7-1979. The suit was decreed on 28-7-1988 against Mohanlal and Bhanwarlal. Bhanwarlal filed an appeal which was dismissed. Then a second appeal was preferred before the Rajasthan High Court which was dismissed. Matter went upto the Supreme Court and the decree was confirmed.
4. Poonampuri filed a suit for cancellation of decree alleging that ex parte decree obtained against his father was a nullity as the counsel who pleaded no instruction never gave any notice to Mohanlal before pleading no Instruction and as the legal representatives of Mohanlal were not brought on record, the decree could not be passed. This decree was nullity and consequently he could not be evicted from the suit property. It was prayed that the decree-holders be restrained from taking possession of the suit property. Application for temporary injunction was filed before the trial Court. It was pleaded on behalf of the defendants that the plaintiff was not in possession of the suit property. Instead he was carrying on his business at Bhagat ki Kothi. It was further pleaded that the legal representatives of deceased Mohanlal were not required to be taken on record and, therefore, the decree was not void. Plaintiff and Banwarilal had hands in glove. It was further pleaded that the decreeholders fought the case for 26 years upto the Supreme Court and were not able to eat the fruit. The decree cannot be held to be invalid. The trial Court refused to grant injunction but when the matter went before the appellate Court, it reversed the order and granted injunction.
5. Learned counsel for the petitioners relying on a large number ofJudgment s submitted that the decree-holders after having been successful up to the Supreme Court are being devoid of the benefit of the decree. Many a time a sentimental approach on the part of the petitioners was seen during the arguments. However, the counsel cited Legal Representative of Ghasi Ram v. Laxminarain, (1993) 2 Raj LW 494, in which trial Court had granted injunction restraining decree-holder for execution, where no prima facie case existed. There was no fraud or mala fide in respect of obtaining the decree against Judgment -debtors and no irreparable injury was caused. Therefore, it was held that temporary injunction cannot be granted. Reliance was also placed on Division Bench Judgment , Smt. Mohini Devi v. Rajasthan State Financial Corporation, Jaipur, 1977 WLN (UC) 556, in which it was observed that the Court should not issue injunction and restrain decree-holder when no irreparable loss is caused. In support of the argument that the execution of the decree could not be injuncted, reliance was placed on AIR 1983 SC 1272, Cotton Corporation of India Ltd. v. United Industrial Bank Limited.
6. On the other hand, learned counsel for the respondents submitted that no jurisdictional error has been committed by the l
