Madras High Court
Bhanumathy vs M. Venkatesan And Ors. on 24 February, 1989
Equivalent citations: AIR1989MAD239, AIR 1989 MADRAS 239
ORDER Sathiadev, J.
1. Plaintiff in O.S. No. 23 of 1984, Sub Court, Salem is the petitioner herein. She filed the suit for partition and separate possession of A and B schedule properties, and for a direction to take accounting of the profits of the firm of Narayana Udayar and Brothers, which was dissolved in 1980 and pay the amounts which had become due to her.
2. Pending disposal of the suit, she filed I. A. 933 of 1988 to reopen the case, so that she may be examined for adducing further oral and documentary evidence. The suit was posted on 13-6-1988 for further arguments. It was on that day, she filed an affidavit in the above-said I. A. claiming that she could not go from Madras to Salem every time for the hearing of the suit, and therefore, she had deputed her husband, who used to contact her previous advocate and intimate her about the stage of the suit. Her husband was extracting money and jewels from her and leading wayward life, and enmity developed when she refused to oblige him with money; and without her consent and knowledge, he had given evidence as her witness and made some endorsement on the plaint. She wanted to examine herself as a witness and mark some important documents, but without getting instructions from her husband and her previous advocate had made endorsements on the bundle against her interests. Hence she filed an application under Section 151, C.P.C. for reopening the case.
3. The 12th respondent had filed counter claiming that plaintiff's counsel reported to court that he was not examining the plaintiff, and he was satisfied with the evidence of her husband, who was examined as P.W. 1 and closed the plaintiff's evidence. Defendants felt that there was no necessity to lead any oral evidence on their side. Therefore, they stated that they are not adducing oral evidence -and therefore, the case was posted for arguments of plaintiff's counsel on 8-3-1988 and it was adjourned to 10-3-1988 for further arguments. On that day, the plaintiff's counsel made an endorsement that he is not claiming any right or share against 12th respondent and his properties mentioned in A schedule to the plaint. Her husband was in charge of the case right from the beginning and gave evidence on her behalf and consented for making an endorsement on the plaint, which resulted in her counsel endorsing the plaint to that effect on 10-3-1988 and 11-3-1988. The claim that the endorsements were made without her knowledge is not true. Even now she had not disclosed as to what are the important documents she wants to mark as exhibits. As she had not reserved her right to examine herself later on, but examined her husband as P.W. 1 in the beginning, she cannot now ask for herself to be examined in view of Order 18, Rule 3-A, C.P.C In fact, after arguments were heard, and matter was posted for judgment several times, and as Presiding Officer could not make ready the judgment before vacation, he reopened it and posted it to 13-6-1988 for further arguments. In the interval, perhaps, they have decided to change ;
their counsel and it had resulted in filing the present application.
4. On court below rejecting the plea for reopening of the suit, this revision petition is filed.
5. Mr. R. Muthukumaraswami, learned counsel for the petitioner-plaintiff, strenuously pleads that it is only in such of those instances wherein a plaintiff or a defendant foregoes his right to be examined in the beginning as a witness on his side Order 18, Rule 3-A, C.P.C could be applied, but in a case like the present one wherein by certain fraudulent acts committed by the plaintiffs husband and her counsel having acted against her interest, her right to be examined as a witness cannot be lost. Having never given any authority in writing ,to make any endorsement and at no point of time, the counsel having ever informed her about the endorsement he had made, they cannot stand in the way of her right to be examined as a witness in the suit and mark the necessary documents as exhibits He admits that the Court below should have first endeavoured to find out whether she had consciously and willingly given up her right to be examined as a witness and this omission on the part of the court below vitiates the order under revision.
5A. It is not her case that her husband was never authorised to appear and he had attended court proceedings without her knowledge and consent. In para 2 of the affidavit she states that as she was having illhealth and could not move to Salem from Madras regularly, for every time to look after her case, her husband used to go to Salem and contact her previous advocate and inform her about the stage of the case. Hence, she has given him the authority to look after the case on her behalf. She had never withdrawn this authority given to him. No correspondence had been placed in this application to show that she had ever informed her counsel that he should not act on the instructions of her husband in future. Her counsel had never complained to her that her husband is interfering with the court proceedings without authority and compelling him to do certain things which would be against her interests. Hence, any act done by an agent would be binding upon the principal The vakalat given to her counsel authorises him to make endorsement. Hence, her husband being examined on her behalf as P.W. 1 and her counsel making endorsements on the plaint on certain aspects along with P.W. 1 cannot be got over by making sweeping allegations without any proof whatsoever.
6. It is not uncommon for litigants to change their counsel at their whims and fancies. Whenever they find that they have faced with an unfavourable order or placed in an inconvenient position, for the purpose of protracting proceedings, a practice has come, to change counsel and speak in a different voice. More often they are done deliberately, so that the proceedings can be protracted for a long period Plaintiffs are no exception to ask for protraction with ulterior motives. By instituting proceedings maliciously for the purpose of harassing the defendants, plaintiffs do not want an early disposal of the case. Hence, by asking counsel to report no instructions or by changing counsel at the crucial moment in a case, I.As of different hues are filed in large numbers in civil Courts. By changing counsel, affidavits are filed maligning them behind then back by making outrageous claims which is for the ulterior motives to subserve their personal interests or at the sacrifice of the reputation of the concerned lawyers. No allegation made against a lawyer behind his back, could ever be a cause for granting any relief to any litigant under any circumstances. It is the I cardinal duty of a court before accepting the allegations made against the counsel, to direct the parties to serve a notice on the counsel of the nature of allegations made against him or secure an affidavit, which would support the claims made by the petitioner in the petition filed as against him. In their absence, it would be unsafe to grant relief by a presumption being drawn that advocates indulge in practices which are alleged as against them in such affidavits. A serious allegation had been made that her husband had made certain endorsements prejudicial to her interests, and the counsel and her husband had brought about the unpleasant situation upon her. This is the only reason for relief claimed in the application. Hence, on her self-serving claim, no adverse inference can be drawn against her husband and the counsel As claimed by respondents, even now the husband and wife are living together, and by change of counsel at the time of arguments, they are resorting to this unfair practice.
7. Unless in matters of this nature, the affidavit of the concerned counsel is filed admitting the allegation or after notice is taken to him, if he comes forward to admit all the averments made by the concerned party, no court would ever accept allegations made against the counsel behind his back to form the basis for granting relief in a proceeding.
8. If a litigant is let down either by his authorised agent or by his counsel, he has to resort to the remedies available in law. Any one who. acts without the authority of a party, be it a counsel or any one else, is liable to be proceeded against both in civil and criminal courts, if circumstances warrant The alleged negligence, fraud etc. if had happened, enables her to secure adequate relief in courts against any counsel, apart from approaching the Bar Council Instead of proving her claims in appropriate proceedings, she cannot call upon the court below in this I.A. to investigate whether the endorsements had been made without her consent
9. Learned counsel would then rely on the letter dt. 15-2-1988 written by her former counsel stating that the case is posted to 18-2-1988, and that he should be contacted on that day, and that "Mrs. Bhanumathi need not come on that date". It is claimed that having been so advised, and she having been deprived of examining herself as a witness, her interests should not suffer on what had happened behind her back; If she has any grievance in this regard as stated above, she can prove it by instituting appropriate proceedings and get remedies in courts as well It is an internal matter between herself and her advocate. They are scheming litigants, who stage for manage for future situations, if circumstances warrant for utilising them. This by itself would not mean that the allegations made by her against her husband and the counsel could be accepted and acted upon. Having given the authority to both of them, to represent her interests in the proceedings, the consequences which flow out of it, will have to be faced by her.
10. Hence in view of Order 18, Rule 3-A, C.P.C. she having not exercised her right to be examined as a first witness in the beginning of the trial, and having not reserved her right by an order of court to examine herself later on, she cannot ask for reopening of the case.
11. Hence, this civil revision petition is dismissed.