Litigants cannot be penalized for their Advocate's procedural errors if they acted in reliance on the Advocate's expertise.

The Hon’ble JUSTICE ARINDAM MUKHERJEE Date: 19th May, 2025.

Mr. Soumabho Ghose, Mr. Anujit Mookherji, Mr. Harsh Tiwari, Mr. Bhupendra Gupta, Advocates for the plaintiffs.

Mr. Shashwat Nayak, Mr. Abhishek Kabir, Advocates for the defendant nos.2 & 3.

Mr. Aurin Chakraborty, Mr. Anirudhya Dutta, Advocates for defendant no.1.

The Court : This application sets out an example of the carelessness of the Advocate-on-Record for the plaintiffs. This application was initially moved ex parte on 5th March, 2025 when an interim order was passed. It has subsequently appeared that Notice of Motion was not filed either with the application in the filing department or before the Court on the date when the same was moved. Subsequently, the matter appeared on 24th April, 2025 after change in determination before this Bench when the defendants appeared and opposed to the continuance of the ex parte ad interim order dated 5th March, 2025. The application was heard on 24th April, 2025, 25th April, 2025, 28th April, 2025, 1st May, 2025, 6th May, 2025 and finally on 13th May, 2025. Wherein the order was dictated in open Court. After the order was dictated it came to the notice of the Court that there is no Notice of Motion filed. It is well settled position of law that the Notice of Motion is the application and the affidavit and/or the petition in support thereof are the grounds.

On 13th May, 2025 at 2 O’clock the matter was mentioned by the learned Advocate for the plaintiffs when a Notice of Motion was shown to this Court which had been taken out on 13th February, 2025 which was stamped and punched on 14th February, 2025 with a date to be moved on 19th February, 2025. In the absence of such Notice of Motion, there was no application in the eye of law. The prayer made by the plaintiffs to allow the curing of the defect could not also be adhered to by this Bench as neither on 13th February, 2025 nor on 14th February, 2025 or on 19th February, 2025 this Bench had the determination to take up this application. The order which was dictated in open Court was, therefore, not signed to allow the plaintiffs/petitioners to take necessary steps since the interim order passed on 5th March, 2025 is in subsistence till 20th May, 2025. The draft order is also not retained in the file to avoid future complications.

The plaintiffs/petitioners have taken out another application on the self-same ground with identical pleadings. The additional fact as aforesaid in respect of GA 1 of 2025 has also been incorporated therein. This application is numbered as GA 5 of 2025. The plaintiffs/petitioners seek to withdraw this application being GA 1 of 2025 and to proceed with GA 5 of This prayer is objected to by the defendants. It is submitted by the defendants that this application is either required to be dismissed or should be held to have become infructuous. In either of the case, to maintain a second application on the self-same cause the plaintiffs/petitioners have to show that there is a change in situation as more than one interlocutory application, say for instance an injunction application according to the defendant can be filed, if there is a change in situation. The defendants also say that if this application is to be dismissed as withdrawn on the prayer of the plaintiffs/petitioners, then in the other application being GA 5 of 2025 the defendants should be given an opportunity to disclose their stand by filing affidavit.

After hearing the parties and considering the materials on record, I am not inclined to penalise the litigants for the mistake committed by their Advocates. A litigant on having engaged an Advocate has to rely upon the advice given to the said litigant by his/her Advocate regarding the procedure to be followed. The litigant does not have an independent role since he has engaged an Advocate to avail his expertise for conducting the litigation.

The order dated 5th March, 2025 and the subsequent orders passed in this application are vacated in the facts and