Andhra HC (Pre-Telangana)
Banwarilal Kedia And Anr. vs A.P. State Electricity Board And Ors. on 18 September, 2006
Equivalent citations: AIR2007AP121, 2007(1)ALD185, 2006(6)ALT646, [2007(4)JCR402(AP)], AIR 2007 ANDHRA PRADESH 121
JUDGMENT D.S.R. Varma, J.
1. Heard the learned Counsel appearing for the petitioners.
2. This application CCCA. M.P. No. 136 of 2006 is filed under Order 41 Rule 19 and Section 151 of the Code of Civil Procedure seeking to set aside the ex parte order, dated 27.7.2005, in C.C.C.A. M.P. No. 525 of 2005, passed by this Court restoring the appeal C.C.C.A. No. 36of 1995.
3. The petitioners herein are plaintiff Nos. 1 and 2 and the respondents are defendants Nos. 1 to 4 A.P. State Electricity Board in the suit O.S. No. 62 of 1981 on the file of I Additional Judge, City Civil Court, Hyderabad.
4. For the sake of convenience, in this order, the parties herein are referred to as per their array in the suit.
5. The Court below, decreed the suit in part, by judgment and decree, dated 16.7.1993, declaring that the total amount of Rs. 6,00,000/- (Rupees six lakhs only) deposited by the plaintiffs-Factory was sufficient towards pilferage of energy charges.
6. Aggrieved by the same, the defendants have preferred the above mentioned appeal C.C.C.A. No. 36 of 1995 before this Court. On 19.8.2002, when the said appeal came up for hearing, since there was no representation, the same was dismissed for non-prosecution and nonappearance.
7. However, on application C.C.C.A. M.P. No. 525 of 2005 made by the defendants-Board, this Court, allowed the said application, by order, dated 25.7.2005, setting aside the order of dismissal, dated 19.8.2002, passed by this Court, in C.C.C.A. No. 36 of 1995, and the said appeal had been restored on to file.
8. Aggrieved by the said order, the present application CCCA.M.P. No. 136 of 2006 had been filed by the plaintiffs.
9. The undisputed facts are that the plaintiffs were served with an order of final assessment regarding the bills for HT energy supply to the Factory for a sum of Rs. 15,94,142=80 paise. The said sum was arrived at by the Board on the ground that there was some pilferage on the part of the plaintiffs.
10. It is the contention of Sri Muralinarayan Bung, learned Counsel appearing for the plaintiffs, that when once the appeal was dismissed for default, the Counsel on record ceases to be the Counsel and notices ought to have been served on the party, and further that no proper reasons were assigned in the affidavit filed in support of the application CCCAMP No. 525 of 2005, filed by the Board under Order IX Rule 13 of CPC, seeking restoration of the appeal. Hence, it is the contention of the learned Counsel appearing for the plaintiffs that the order of restoration of the said appeal, passed by this Court, dated 27.7.2005, is liable to be set aside.
11. In this regard, it is to be seen from the order, dated 27.7.2005, in CCCAMP No. 525 of 2005, passed by this Court restoring the appeal after setting aside the order of dismissal for default, that the said order was passed after hearing Sri Sreeramulu Reddy, learned Standing Counsel for the Board, and Sri K.R. Raman, learned Counsel appearing for the plaintiffs (petitioners herein).
12. Though, technically it appears that once the appeal was dismissed for default, the relationship of Advocate and client ceases, but, still the vakalat given by the plaintiffs to Sri K.R. Raman, learned Counsel, shows that the learned Counsel was authorized to deal with all matters connected to the suit. This includes, in our considered view, to take notice of the petition filed under Order IX Rule 13 of CPC, upon service by the Board, appear before the Court and represent the clients. Of course, at times Counsel may be able to inform the client and at times, not. The authorization given to the Counsel shall be understood strictly not only in terms of the conditions incorporated in the vakalat but also with regard to the overall facts and circumstances.
13. When the said application CCCA MP No. 525 of 2005, under Order IX Rule 13 of CPC, filed by the Board, had come up for hearing, this Court recording the presence of both the learned Counsel appearing for either side, ordered the same impliedly in the light of the bona fide mistake on the part of the Board and also, perhaps, in view of the involvement of public monies in the litigation. The jurisdiction exercised by another Division Bench of this Court while restoring the appeal was purely discretionary having taken stock of the whole situation, that too after hearing both the learned Counsel.
14. Now, at this stage, the plaintiffs cannot turn round and say that their relationship with Sri K.R. Raman, learned Counsel, had ceased and this Court is at an obligation to serve notices on the parties directly when the appeal was dismissed for default.
15. After all, every case before this Court is desirable to be disposed of on merits only, and in exceptional cases, when there was deliberate absence on the part of the learned Counsel or the party, the proceedings, in any manner would be dismissed for default. Even that jurisdiction is a discretionary jurisdiction.
16. When the Court has discretionary jurisdiction to dismiss the case for valid reasons for default, equally there is a discretionary jurisdiction to restore the same having regard to the facts and circumstances of each case.
17. This is one case where a Division Bench of this Court exercised its discretionary jurisdiction in the presence of both the learned Counsel.
18. It is seen from the record that as per the authorization in the vakalat of the learned Counsel, he is entitled to take notice on behalf of his client and oppose the same, and intimate the result to the client, with due promptitude, later. Further, there is no proof that the plaintiffs did disown their earlier Counsel on record-Sri K.R. Raman and entrusted the matter to Sri Muralinarayan Bung, learned Counsel, and gave vakalat.
19. In other words, there is no express withdrawal of authorization given by the earlier Counsel though not necessary always.
20. It is settled principle that when once the name of the Counsel is printed in the cause list, it is the obligation on the part of the Counsel to be present before the Court and explain about his status and relationship with his client. That duty had been scrupulously followed by the earlier Counsel-Sri K.R. Raman. Hence, he cannot be faulted.
21. Furthermore, when it is recorded by this Court while allowing the application CCCAMP No. 525 of 2005, filed under Order IX Rule 13 of CPC, that both the learned Counsel appearing on either side were heard, we cannot have any reason to disbelieve the said recording since they are judicial proceedings and the presumption is that they are absolutely correct and recorded following due process of law.
22. The conduct of the plaintiffs is suggestive of their unquenchable thirst for litigation. In fact, the answer to the contention of the learned Counsel for the plaintiffs can be traced in Order III Rules 4 and 5 CPC.
23. The Apex Court in State of Maharashtra v. Ramdas Shrinivas Nayak , at Paragraph Nos. 4 and 7, observed thus:
4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to peruse the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us Judicial decorum restrains us. Matters of Judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation." Per Lord Atkinson in Somasundaram v. Subramanian AIR 1926 PC 136. We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error Per Lord Buckmaster in Madhusudan v. Chandrabati AIR 1917 PC 30. That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
7 So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.
24. In Bijli Cotton Mills (Pvt.) Ltd v. Chhaganmal Bastimal , the Allahabad High Court, at Paragraph No. 6, observed thus:
6 Order III, Rule 4 of the Civil P.C. provides for appointment of pleader and termination of his authority. Sub-rule (2) lays down that appointment of a pleader 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. Thus, once an Advocate is engaged as a pleader by a client, the authority of the Advocate to represent his client continues to remain in force until it is determined with the leave of the Court in writing signed by the client or the pleader. In the absence of a written termination of the relationship of the client and the pleader, the pleader is not absolved of his duty to appear on behalf of his client. Any statements made by him that he had no instructions, does not terminate his authority. Once he has accepted the brief and the client has paid his fee, he continues to represent the client and be responsible for the conduct of the case. He is, no doubt, entitled to terminate his status as a pleader of the client but that cannot be done orally. It must be done in writing with the permission of the Court in the manner laid down by Clause (2) of Rule 4 of Order III.
25. In Motilal v. LRs. of late Poonampuri , Rajasthan High Court, at Paragraph No. 8, observed thus:
8. I have considered the rival contentions anxiously. The contention of the learned Counsel that the decree is a nullity on various grounds cannot be accepted at this stage as it is a triable question before the trial Court where it is being tried. Prima facie it appears that Shri Maloo who had pleaded no instructions continued to be the Counsel as his power was not terminated as per provisions of Order 3 Rule 4(2) CPC. In , Bijli Cotton Mills (Pvt) Ltd. v. Chhaganmal Bastimal relied by the learned Counsel for the respondents, it has been held that the appointment of a pleader under Rule 4(2) of Order 3, 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. Thus, once an Advocate is engaged as a pleader by a client, the authority of the Advocate to represent his client continues to remain in force until it is determined with the leave of the Court in writing signed by the client or the pleader. When Shri Maloo had pleaded no instructions, even then he continued to be the Counsel. So the argument of the learned Counsel for the petitioners that Shri Maloo should have given a notice before pleading no instructions, does not hold water. Learned Additional District Judge had very ably discussed the facts and law in Para Nos. 6, 7 and 8 of his judgment. I do not feel inclined to interfere in such an order passed after due consideration by the learned appellate Judge.
26. In T. Nagabhushanam v. K. Narasimhayya this Court, at Paragraph Nos. 2, 3, 4, 5 and 6, observed thus:
2. The simple question for decision in this appeal is whether after the dismissal of a suit for default, a fresh vakalatnama is necessary to be filed by the Advocate engaged by the plaintiffs in the suit for instituting a petition under Order 9 Rule 9 CPC.
3. Answer to the question is directly available in Order 3 Rule 4, Sub-rule (2) CPC, which reads:
Every such appointment shall be filed in Court and 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.
4. The words "until all proceedings in the suit are ended so far as regards the client" are wide enough to cover the proceedings by way of an application for restitution of a suit dismissed for default. All the proceedings in the suit do not come to an end so far as regards the client merely by a dismissal of a suit for default as such order of dismissal may be set aside for valid reasons on an application and the case may be restored for trial. The vakalatnama filed by the appellants' Advocate in the suit is admittedly in the usual terms giving the Advocate all power to prosecute the suit and all proceedings that might be taken in respect of any application connected with the suit and also to apply for execution of the decree which might be passed in the suit. There is no clause in the vakalath indicating any limitation on the power of the Advocate necessarily implied in the vakalatnama for the proper conduct of the case. Mere dismissal of a suit for default does not put an end to the proceedings in the suit as regards the plaintiff.
5. The proceedings can still be continued under the relevant provision of the law and the Advocate engaged for the prosecution of the suit will have every power to continue the proceedings until it is finally decided in the Court concerned. It is manifest that if the default order is set aside, the suit will be restored to its original number and will not be treated as a fresh suit requiring a fresh vakalatnama. It would indeed be anamolous if a fresh or special vakalat is required for the limited purpose of getting the suit restored to file.
6. Where the vakalatnama filed by an Advocate for the plaintiff in the suit is in the usual terms without any limitation of his powers, such Advocate would have a right to do everything that is necessary for the proper conduct of a case and if the case is dismissed for default, there can be little doubt that he has an implied authority to file an application for setting aside the default order.
27. Therefore and for the foregoing, and in the light of the above legal position, we do not find any merit in the submissions made by Sri Muralinarayan Bung, learned Counsel appearing for the plaintiffs, and the same are not sustainable.
28. The application CCCAMP No. 136 of 2006 fails and is liable to be dismissed.
29. In the result, the application CCCAMP No. 136 of 2006 is dismissed with costs.