Orissa High Court
(In Both The Cases) vs Radharani Mishra & Another ...... Opp. ... on 30 August, 2013
Author: M.M. Das
Bench: M.M. Das
ORISSA HIGH COURT: CUTTACK.
W.P. (C). Nos. 7686 AND 5980 of 2012
In the matter of applications under Articles 226 and 227 of the
Constitution of India.
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(In both the cases)
Biswamohan Mishra ...... Petitioner
-Versus-
Radharani Mishra & another ...... Opp. parties
For Petitioner : M/s. Tushar Kumar Mishra &
S.K. Sahoo
For opp. parties : M/s. Darpahari Dhal,
K. M.Dhal, A.Das &
M.K.Sahoo.
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Date of Judgment: 30.08.2013
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PRESENT :
THE HONOURABLE SHRI JUSTICE M.M. DAS
M. M. Das, J.The aforementioned two writ petitions have been filed by the petitioner, who is the plaintiff in C.S. No. 18 of 2009 pending before the learned Civil Judge (Junior Division), Ist Court, Cuttack, challenging the order dated 22.3.2012 by which the learned trial court rejected the two applications filed by the petitioner; one being to recall the order dated 5.1.2010 and the other, rejecting the prayer of the petitioner to allow him to adduce evidence on all the issues.
2. To appreciate the rival contentions, the facts leading to the above writ petitions are required to be exposited, which are as follows:
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The petitioner as plaintiff filed the aforementioned suit for a decree of perpetual injunction restraining the defendants - opp.
Parties from undertaking any construction in Hal khata no. 318, under Hal plot no. 270 in mouza Cuttack Sahar, Unit No. 35, Jhangirimangala and from interfering with his exclusive right over the said land. The petitioner has also prayed for a decree of mandatory injunction directing the defendants to demolish the construction undertaken by them within 3 ft. of their Hal plot no. 271 towards its North from the Southern boundary wall of the plaintiff's dwelling house standing over Hal plot no. 271. The opp. party no. 1 filed her written statement and a counter claim seeking a decree declaring that the plaintiff has no boundary wall on the Southern side of his plot No. 270 and the plaintiff and his henchmen be restrained from coming upon plot no. 271 or interfering in peaceful possession of the defendant over the said land. The defendant no. 1 further prayed for a decree for damages of Rs. 9800/- against the plaintiff. The opp. party no.2, who is defendant no. 2 also filed his written statement independently denying the plaint allegations. A written statement has been filed by the plaintiff to the counter claim filed by the defendant no.1.
3. The learned trial court on the pleadings of the parties framed the following issues:
"i. Whether the suit as laid is maintainable ?
ii. Whether there is any cause of action for institution of the suit.3
iii. Whether the boundary wall existing between Hal Plot No. 270 of Hal khata No. 318 and Hal plot no.271 of Hal khata No. 444 of Mouza - Unit No. 35,
Jharjirmangala, Cuttack is a part and parcel of Hal Plot No. 270 or Hal Plot No. 271 ?
iv. Whether the defendants threatened to invade the right to or enjoyment of such boundary wall by the plaintiff?
v. Whether the plaintiff caused any damage to any construction made over Hal Plot No. 271 ?
vi. Whether the plaintiff is entitled to the reliefs prayed for or any other reliefs ?
vii. Whether the defendant no. 1 is entitled to the reliefs prayed for or any other reliefs ?
4. The plaintiff thereupon filed an application under Order 18, Rule 3 C.P.C. to reserve his right for adducing rebuttal evidence on issue nos. 5 and 7 after closure of the evidence by the defendants and to permit him to produce evidence in answer to issue no.3 after examination of an Amin Commissioner. The learned trial court disposed of the said application by his order dated 24.11.2009, which is to the following effect:
"The plaintiff is required to begin his case in respect of issue nos. 1 to 4 where-after defendant no. 1 is to adduce evidence in respect of issue No. 5. The plaintiff is permitted to reserve his right in adducing rebuttal evidence in respect of issue No. 5 after the evidence in that respect is adduced by defendant No.1. Put up on 30.11.09 for the plaintiff to begin the hearing of the suit on Nos. 1 to 4".
5. It may be mentioned that the plaintiff - petitioner has filed an application under Order 39, Rules 1 and 2 C.P.C. and in the said application, the defendant also filed an application under Order 4 39, Rule 7 C.P.C. for inspection of the suit land. The learned court below allowed the application under Order 39, Rule 7 C.P.C. filed by the defendant and directed the defendant to take steps. At this juncture, when the defendant has not taken any step, the petitioner filed an application under Order 26, Rule 9 C.P.C. to depute a survey knowing Commissioner to ascertain the existence of the boundary wall.
6. It is the case of the petitioner that his Advocate filed a memo on 23.12.2009 under compulsion that the plaintiff will not adduce any other evidence except the evidence/report of the survey knowing Commissioner. After receiving the memo, the learned court below on 5.1.2010 stating that the Advocate for the plaintiff has filed the memo undertaking not to adduce any oral evidence in respect of issue nos. 1 to 4, of which, issue no. 3 is vital, which relates to the dispute about the existence of a boundary wall between Hal plot Nos. 270 and 271, considered the very memo and allowed the application under Order 26, Rule 9 C.P.C. by passing the following order:
"The application under Order 26, Rule 9 of CPC filed by the plaintiff is allowed on contest against defendant no.1, but without costs. A survey knowing Amin Commissioner be deputed to make local investigation of Hal Plot No. 270 of hal khata no. 318 and hal plot no. 271 of Hal Khata No. 444 of Mouza - Unit No. 35, Jhangirmangala, Cuttack and to report after due demarcation and measurement as to whether the boundary wall existing between Hal Plot No. 270 of Hal Khata No. 318 and Hal Plot No. 271 of Hal Khata No. 444 of Mouza - Unit No. 35, Jharjirmangala, Cuttack is a part and parcel of Hal Plot No. 270 or Hal Plot No. 271. The plaintiff is required to pay the cost of the appointment of Amin Commissioner and take steps for issuance of writ. Put up on 8.1.2010 for the plaintiff to take steps".5
7. In pursuance of the aforesaid order, the Amin Commissioner, who was deputed for the purpose, after measurement, submitted his report and he has been examined as court witness by the defendants. Thereafter, the petitioner filed four applications before the learned court below, one under section 151 C.P.C. to recall the order dated 5.1.2010, the second to permit the plaintiff to adduce evidence in all the issues framed/settled by the learned court below and the other two petitions for amendment of the plaint and written statement to the counter claim.
8. The learned court below at the first instance heard the two petitions with regard to recalling of order dated 5.1.2010 and permitting the petitioner - plaintiff to adduce evidence on all issues and passed the impugned order on 22.3.2012. It may be mentioned that the aforesaid applications were filed by the petitioner on disengaging his previously appearing counsel and engaging Mr. A.K. Mishra as his advocate. The learned trial court after hearing both the applications refused to recall the order dated 5.1.2010 as well as the prayer of the plaintiff to adduce evidence on all the other issues.
9. It appears that the learned trial court after discussing the developments in the suit and taking note of the fact that the plaintiff took repeated adjournments to further cross-examine the Amin Commissioner and analyzing the scope of the memo filed by the previously appearing advocate on behalf of the plaintiff undertaking that the plaintiff will not adduce any evidence, has rejected the prayer 6 of the petitioner. The learned court below has relied upon the decision in the case of Doki Adinarayan Subudhi and Brothers v. Doki Surya Prakash Rao, AIR 1980 Orissa 110, wherein this Court held that "when a pleader gives an undertaking, he acts as the agent of the client and as representing him. He derives his authority from the client and that is why he is required to file a vakalatnama duly signed by the client as required under Order III, Rule 4 C.P.C. He is prohibited from acting without a vakalatnama............... It is the agency created by a client in favour of his Advocate which clothes the latter with the power to act on behalf of the former and it is by virtue of the vakalatnama that the client becomes bound by the actions of his Advocate within the limits of authority......."
10. From the facts as narrated above, the only question which requires to be determined is as to whether the previously appearing advocate on behalf of the petitioner-plaintiff had the authority to file the memo in shape of undertaking stating that the plaintiff will not lead any evidence on any other issue, basing on which, the impugned order has been passed. In the decision relied upon by the learned trial court, this Court was considering the question as to whether an undertaking given by a Senior Advocate appearing on behalf of another advocate engaged by the party, in the absence of the party, is binding on him or not and in that context, this Court held that the undertaking given by a Senior Advocate appearing on behalf of another Advocate engaged by the party, is not 7 binding on the party. While deciding the said question, this Court analyzing the authority of a Senior Advocate observed that an Advocate, who appears on behalf of another Advocate engaged by a party can only plead but he has no power to 'act' on behalf of a party without a document in writing in his favour. While holding thus, it was further observed in the said decision that the agency created by a client in favour of his Advocate which clothes the latter with the power to act on behalf of the former and it is by virtue of the vakalatnama that the client becomes bound by the action of his Advocate within the limits of authority.
11. The petitioner has taken a plea in both the writ petitions that he has never given his consent to give an undertaking on his behalf that he will not lead evidence on any other issue. He has relied on the decision in the case of Achhuta Mallick v. Magu Mallick and others, 1973 (39) CLT 874, this Court while considering the averments made in the plaint held that it is a common knowledge that plaints are very often drafted by Advocates without applying their mind to the documents given by the parties. It might not have been always deliberately done but such instances have very often come to the notice of Courts. In such cases, parties should not be allowed to suffer for the negligence of misconception of their advocates if the true picture is subsequently presented to the Court and sufficient explanation is offered why such errors were committed. In the facts of the said case, this Court held that it is inclined to accept the 8 plaintiff's explanation that it is due to the advocate not properly appreciating the instructions of the client that the first defendant was described as an utter stranger to the plaintiff's family and allowed the amendment sought for by the plaintiff. The facts of the said case are distinguishable from the facts of the present case and, hence, the conclusion of this Court in the said decision cannot be made applicable to the facts of the present case.
12. An undertaking on behalf of the party by the Advocate is an offer made on behalf of the party. There are contrary views on this aspect by different High Courts. This Court in the case of Braja Kishore Sahu v. Param Jyoti Sinha and another, 1990(I) OLR 26, was considering the effect of a compromise arrived at before the Motor Accident Claims Tribunal filed by the Advocate for the claimant, where there was no consent of the claimant. In the said case, similar to the facts of the present case, after the compromise was entered into, the claimant engaged another Advocate, who filed a petition stating therein that without his knowledge, his Advocate has entered into a compromise with respondent no.2 in the Lok Adalat held in the month of January, 1988. This Court, referring to the provisions of the General Rules and Circular Orders of the High Court of Judicature, Orissa (Civil) Vol. I, referred to as GR & CO with regard to the authority of the counsel for entering into and admitting a compromise on behalf of their clients quoted Rule 478 of Chapter-IV, which prescribes the form of vakalatnama. Thereafter, referring to Rule 485 9 in the same Chapter, which states that "no Court shall accept admission of a compromise by a Pleader/Advocate or record a compromise filed by a Pleader or Advocate in a pending case, unless a special Vakalatnama is filed by such Pleader or Advocate for the said purpose" and referring to various judgments of the Hon'ble apex Court with regard to the scope and ambit of Order 23, Rule 3 C.P.C., which relates to disposal of the suit on compromise, held that the Advocate had no authority to enter into the compromise in the facts of the said case and set aside the same. The aforesaid ratio also cannot be made applicable to the present case as this is not a case, where a compromise has been admitted by the counsel, but a case, where the lawyer for the plaintiff filed an undertaking in shape of a memo.
13. In the present case, the applications filed for recalling the order dated 5.1.2010 and for allowing the plaintiff to adduce evidence on all issues were applications under section 151 C.P.C. which is the section providing inherent power to the Court. It is well settled proposition of law that exercise of discretion under section 151 C.P.C. must be done in extraordinary circumstances where there is no other provision available to exercise such power and such inherent power certainly will not be invoked in favour of the party, who does not pursue the remedy in time. The Supreme Court in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527 held that inherent powers of the Court are in addition to the power specifically conferred on the Court by the 10 Code. They are complimentary to those powers and, therefore, it must be held that the Court is free to exercise them for the purposes mentioned in section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the Legislature. It further observed that the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure.
14. In the instant case, from the orders passed by the learned court below it would be evident that the suit was posted for hearing to different dates when the plaintiff sought for adjournment. Ultimately, along with the application filed under Order 26, Rule 9 C.P.C. to depute a survey knowing Commissioner, a memo was filed by the Advocate for the plaintiff giving an undertaking that the plaintiff will not adduce any other evidence except the evidence/report of the survey knowing Commissioner. Basing on such memo, the order dated 5.1.2010 was passed allowing the application under Order 26, Rule 9 C.P.C. It is, therefore, to be seen as to whether the Advocate for the plaintiff who was appearing on behalf of the plaintiff at that point of time can be held to be authorized to file the memo as stated above on behalf of the plaintiff, undertaking that the plaintiff will not lead any other evidence except the evidence/report of the survey knowing Commissioner and as to whether the plaintiff will be held to be bound by such act of his counsel.
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15. It is now well settled that the best evidence of the fact as to what happened before the court is what is recorded by the Judge in his order. The parties are precluded to challenge the correctness of the statement made by the court in the order. It can only be changed if the Judge himself says that he incorrectly recorded the order or it did not so happen but by mistake that was recorded or if both the parties agree that what is recorded by the court is not correct. The Patna High Court while considering the effect of an undertaking given by the learned counsel for the party in the case of Deonandan Ojha and another v. Ramdeyal Ojha and others, AIR 1971 Patna 102 held that every undertaking by a party is not given before the Court in writing. Counsel gives undertaking and the Court accepts that undertaking and proceeds on that undertaking and passes orders. It is as good as an undertaking given by a party himself in writing and is binding on him. Order 3, Rule 4 C.P.C. provides that no Pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person by a document in writing signed by such person or by his recognized agent or by some other person duly authorized by or in a Power of Attorney to make such appointment. Pursuant to the above provision of the Code, the Vakalatnama is filed by the counsel appearing for a party or parties before the Court. The authority given to a Lawyer by such Vakalatnama in accordance with the provisions of Order 3, Rule 4 CPC, as held by this Court in the case of Doki Adinarayana Subudhi and Brothers (supra), an Advocate 12 giving an undertaking in a Court, acts as the agent of the client representing him and he derives his authority from the client on the basis of the Vakalatnama duly signed by the client. Hence, the learned trial court rightly concluded that the plaintiff is bound by the undertaking given by his Advocate before the learned trial court that he will not adduce any evidence except the evidence/report of the survey knowing Commissioner. No doubt, in case of admitting a compromise, the facts situation is different, where an Advocate can admit a compromise between the parties only when he files a special power/Vakalatnama authorizing him to admit such compromise on behalf of a party in Court. (emphasis supplied)
16. On the above analysis of law, this Court is of the opinion that there is no infirmity or illegality in the impugned order so as to be interfered with either by exercise of the power of superintendence under Article 227 or by issuance of a writ of certiorari under Article 226 of the Constitution.
17. In the result, both the writ petitions being devoid of merit stand dismissed. There shall be no order as to costs.
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M.M. Das, J.
Orissa High Court, Cuttack.
August 30th , 2013/Biswal.
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