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Shanti Swarup Vs. Mahinder Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberC.M. 495 of 1985 and S.A.O. 206 of 1983
Judge
Reported in29(1986)DLT205; 1985RLR536
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 4 - Order 9, Rules 1 and 4; Delhi Rent Control Act, 1958 - Sections 14(1)
AppellantShanti Swarup
RespondentMahinder Kumar and ors.
Appellant Advocate R.K. Anand, Adv
Respondent Advocate P.D. Gupta, Adv.
DispositionApplication dismissed
Cases ReferredHem Chand Baid v. Smt. Prem Wati Parikh
Excerpt:
.....from court - no application on behalf of appellant filed by said advocate - another advocate filed application - engagement of first advocate continued till date on which appeal dismissed in default - as neither first advocate nor appellant sought leave of court in writing for determination of his engagement - court had not granted leave to first advocate for withdrawal from case - filing of 'vakalatnama' by second advocate is of non-consequence - restoration application dismissed. - - prem wati parikh air1980delhi1 .it was held that once a default is committed by a tenant as contemplated by clause (h) by building his own house or acquiring alternative accommodation, he ceases to enjoy the protection of law permanently and at no point of time and under no circumstances the..........possible to argue the matter on 15th january 1985. he, thereforee, filed an application before the joint registrar for adjourning to 15th february 1985. the appellant, after learning that the matter was dismissed in default on 25th january 1985 engaged advocate r.k. anand who took the inspection of the file on 29th january 1985 to discover as to what the happened. the other counsel appearing in the matter, it is stated, did not inform the appellant of the date 24/25-1-1985.2. the appeal is filed against the order of the rent control tribunal dismissing the appeal of the appellant shanti swarup upholding the order of the rent controller and eviction of the appellant under clause (h) of the proviso to sub-section (1) of section 14 of the delhi rent control act. clause (h) reads:'the tenant.....
Judgment:

S.B. Wad, J.

1. This is an application for restoration of the second appeal dismissed in default by Justice Avadh Behari, J. on 25th of January 1985. The appeal was listed a day earlier i.e. on 24th of January 1985 for admission. As the name of Shri M.L. Lonial, advocates was not shown in the cause list the learned Judge directed that his name be shown in the list and that the matter be listed for 25th January, 1985. The present application is moved by Shri R.K. Anand, advocate on 1st February 1985. It is stated in the application that he was engaged by the appellant on 14-1-1985. After studying the appeal paper-book he found that it would not be possible to argue the matter on 15th January 1985. He, thereforee, filed an application before the Joint Registrar for adjourning to 15th February 1985. The appellant, after learning that the matter was dismissed in default on 25th January 1985 engaged advocate R.K. Anand who took the inspection of the file on 29th January 1985 to discover as to what the happened. The other counsel appearing in the matter, it is stated, did not inform the appellant of the date 24/25-1-1985.

2. The appeal is filed against the order of the Rent Control Tribunal dismissing the appeal of the appellant Shanti Swarup upholding the order of the Rent Controller and eviction of the appellant under Clause (h) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act. Clause (h) reads:

'The tenant has whether before or after the commencement of this Act, built, acquired the vacant possession of, or been allotted a residence.'

3. The eviction petition was filed on various other grounds but we may refer to the facts relevant to the ground on which the decree for eviction was passed. It was pleaded by the landlord that the appellant has built or has otherwise acquired alternative accommodation at 78-D Malcha Marg, New Delhi. It was also pleaded that the appellant had 1/3rd share in that property by virtue of the decree of the High Court passed on 5-8-1967. In his written statement the tenant raised the preliminary objection. It was stated that the landlord was the only benami owner and there was no relationship of landlord and tenant between the parties. It was then claimed that House No. 78-D Malcha Marg, New Delhi was under litigation and that the premises in question were taken for residential-cum-commercial purpose. It was claimed that the appellant was running the business of a property dealer from the suit premises. The suit premises consist of the first floor (and second floor) in House No. 113, Darya Ganj. The two courts below have concurrently held that the appellant had built or acquired the said house at 78-D Malcha Marg, New Delhi and was, thereforee, liable to eviction. The Court in Battoo Mal v. Rameshwar Nath and Anr. (2nd 1970 Vol 1 (Delhi) P 748 had held that once the protection is lost by a tenant by his default under Clause (h), it is lost for ever and cannot be revived at any point of time or under any circumstances. This was a special reference to the D.B. because of the difference of opinion between the two single benches of this Court. This judgment has been affirmed by author Division Bench of this Court in Hem Chand Baid v. Smt. Prem Wati Parikh : AIR1980Delhi1 .

It was held that once a default is committed by a tenant as contemplated by Clause (h) by building his own house or acquiring alternative accommodation, he ceases to enjoy the protection of law permanently and at no point of time and under no circumstances the protection of law is revieved. But we need not go to the merits of the appeal since the only question to be considered at this stage is whether the appellant had made out sufficient ground for restoration of his appeal dismissed in default.

4.To exercise the discretion in this matter the conduct of the appellant through out the proceedings is directly relevant. The application for eviction was filed on 8th November 1976. The appellant (sic) number of adjournments for filing the written statements and even cost had to be imposed on him. The landlord's evidence was completed by the end of 1977. The appellant delayed the production of his evidence for two and a half years and did not complete his evidence. So on 6-5-1980, the Rent Controller passed an order closing the evidence of the appellant. Against the said order the appellant preferred a petition under Article 226 of the Constitution being C.M. (M) 86 of 1980. This was decided by Justice Chadha, J. on 6-8-1980 whereby the petition was dismissed. This Court found that the conduct of the appellant was contumacious which was writ large on the record. Even after the evidence was closed the appellant moved an application for the amendment of the written statement under Order 6 Rule 17. He concerned in the said application that he was the tenant with respect to the first floor but inadvertently could not take up the plea that he is a tenant with respect to the first floor along with the terrace of the second floor and was residing therein along with the members of his family and carrying on business therein. This amendment was sought belatedly so as to raise the plea that the accommodation on the second floor was being used for commercial purpose. This applications was (sic) by the Rent Controller holding it frivolous and made for raising a flimsy defense so as to delay the disposal of the petition. On 23-9-1981 he moved another application for amendment of the written statement. Through this amendment he wanted to incorporate a new ground that the property 78-D, Malcha Marg, New Delhi was in occupation of tenants and was sold and it was no more available with the appellant. This application was dismissed by the Rent Controller on the basis of the law laid down by this Court referred to above. One of the reasons for the Court's order was that the property was sold by the appellant after the eviction petition was filed. After the rejection of the said application, he filed an application for review of the Order dated 25-9-1981 passed by the trail court dismissing his application for amendment. He now contended through the application that the predecessor of the present landlord had never sought his eviction on the ground of his constructing acquiring 78-8, Malcha Marg, New Delhi. The learned Rent Controller dismissed the review application. The learned Judge found that the repeated frivolous applications made by the appellant could not be entertained after his evidence was closed and the order of Justice Chadha, J. of this Court. All these orders were challenged in the first appeal before the Tribunal and the Tribunal after elaborately dealing with them have found no merit in the challenge. In fact the appellate court had held that the applications were made mala fide. The Rent Controller granted the eviction order on 27-11-1981 in the petition filed in 1976. The first appellate court rejected the appeal on 25-10-1982. Thus in spite of the eviction decree passed on the ground that the appellant had built/acquired another accommodation the appellant has been successful in holding to the premises for the last 8 years. The sale of 78-D Malcha Marg house during the pendency of the eviction proceeding has a special significance in this case. The appellant is an estate broker and a house agent.

5. The present appeal was filed on 5th July 1983. It was filed with the Vakalatnama of Shri M.L. Lonial, advocate and Shri Anandbir Singh Kalra, advocate. There is a practice direction in the High Court that before admission a party can get the adjournment by making an application to the Joint Registrar (Jud). A form is also prescribed for that purpose. On 5-9-1983 the application was moved by the appellant and signed by advocated Anantbir Singh Kalra for adjournment on the ground that brother-in-law of the appellant was seriously ill in Assam and the appellant was out of Delhi in that connection. The hearing was adjourned to 7-10-1983 by the Joint registrar. On the same ground adjournment was sought and the appeal was adjourned to 11-11-1983. Again on application was moved on 7-11-1983. Again on application was moved on 7-11-1983 by the appellant and signed by Anandbir Singh Kalra, advocate for adjournment on the same ground. The Joint Registrar adjourned the appeal to 2-12-1983. On 20-11-1983 an application for adjournment was moved on the ground that the applicant's advocate Anandbir Singh Kalra had to go to Bombay for the marriage of his sister-in-law. The matter was adjourned to 19th December 1983. Then an application was moved on 15-12-1983 for adjournment on the ground that he senior advocate from Supreme Court was engaged in the matter and that he was out of station. The matter was adjourned to 20th on January 1984. But on 18th January 1984 a fresh application was moved again on the ground if ill-health of the brother-in-law and the case was adjourned to 23-3-1984. On 1-6-1984 the matter was listed in the Court for admission. Thus since the date of filing of the appeal in this Court the case was adjourned 9 times. On 1-6-1984 Shri Lonial, advocate appeared and requested the Court to call the record. The Court listed the matter for 27-7-1984 for summoning the record and admission. On 24-7-1984 the appellant again sought an adjournment from the Joint Registrar which was granted. Thereafter the matter was again adjourned at his request by the Joint Registrar for 24-9-1984 but even on that date the matter could not be heard by the Court. It was then listed on 8-10-1984. Neither Mr. Lonial nor advocate Anantbir Singh Kalra appeared. One advocate S.K. Verma, presented himself before the Court representing that he was authorized to appear. It may be noted that no Vakalatnama was filed by Shri S.K. Verma, advocate nor was there any written authorization in his favor by the two advocates who had already filed their Vakalatnamas. The request was made to the Court to adjourn it on the ground that Shri P.R. Mridul, advocate was to argue the matter and that he was dead. The Court adjourned the case for 14th December 1984. On 13th of December 1984 Mrs. Usha Kumar, advocate filed her Vakalatnama. She filed an application before the Joint Registrar (Judl.) for adjournment. The application does not show that it was signed by the appellant also. All the earlier 11 applications were signed by the appellant and were also signed by Anantbir Singh Kalra, advocate. Against the column 'Number of adjournments already taken' the said advocate wrote 'not to the counsel's knowledge.' To appreciate this endorsement on the application for adjournment the order of the Joint Registrar on the applicants application dated 24-9-1984 should be noticed. The Joint Registrar noted 'records have been called and received; hence no further adjournment.' It appears that the advocate Anantbir Singh Kalra pressed the Joint Registrar for the adjournment again and thereforee the Joint Registrar noted 'the matter was being adjourned on 8-10-1984 as a special case but with no further adjournment.' On the application of Mrs. Usha Kumar the Joint Registrar adjourned the case to 24-1-1985 probably because the applicant did not disclose the earlier 11 adjournments and as it was not brought to the notice of the Joint Registrar that on 25th September 1984 he had already ordered that no further adjournment would be granted. Although the matter was adjourned to 24-1-1985 it was listed in the Court on 3rd of January 1985. It is not clear how it was listed on 3-1-1985 because it was not so ordered by the Court. But on that date Mrs. Usha Kumar advocate presented herself and requested for adjournment up to 15th of January 1985. It is reasonable to inter that the appeal was listed on 3rd of January 1985 at the request of Mrs. Usha Kumar, advocate. The appellant purportedly changed the counsel for the fifth time now and Shri R.K. Anand was engaged as an advocate. He filed his Vakalatnama on 15th of January 1985. This application is signed only by Shri R.K. Anand, advocate and not by the applicant, Anand, advocate wrote on the application that the appeal was not as yet admitted. He also noted that the next date of hearing was 15-1-1985. Further, against the column 'Number of adjournments already taken' he wrote 'None.' He sought the adjournment up to 15-2-1985 and the adjournment was allowed. It may be noted that advocate and not by the applicant, Anand, advocate wrote on the application that the appeal was not as yet admitted. He also noted that the next date of hearing was 15-1-1985. Further, against the column 'Number of adjournments already taken' he wrote 'None.' He sought the adjournment up to 15-2-1985 and the adjournment was allowed. It may be noted that advocate Anand filed his Vakalattnama on 15th of January i.e. the date on which the matter was ordered to be listed in the Court by Justice Yogeshwar Dayal, J. on the request of advocate Mrs. Usha Kumar. It is not known how and hwy the application for adjournment was moved on that very day before the Joint Registrar and how could Joint Registrar be persuaded to adjourn the matter on his own although it was listed before the Court for that day. But one point is clear that the appeal was not actually placed before the Court on 15th January 1985 by the office. The appeal was, however, listed before Justice Avadh Behari, J. on 24-1-1985. The Joint Registrar in his report has explained as to how the matter was listed in the Court on 24th of January 1985. The Joint Registrar has stated:

'Counsel for the appellant Mrs. Usha Kumar, by her application dated 13-12-1984 got the appeal adjourned from 14-12-1984 to 24-1-1985 for which date the case was noted in the Registrar. Again by an application dated 14-1-1985, Shri R.K. Anand another counsel for the appellant got the case adjourned from 15-1-1985 to 15-2-1985 without mentioning that the case was already got adjourned to 24-1-1985. thereforee, the entry made in the Registrar for 24-1-1985 continued in it and consequently the appeal was listed before the Court on that date. Had the counsel given the correct date for which the appeal stood adjourned by an earlier application, the appeal would not have been listed earlier than 15-2-1985.'

Justice Avadh Behari, J. did not dismiss the matter on 24-1-1985 although none of the counsel for the appellant were present. But the learned Judge directed it to be listed on 25-1-1985. As none of the counsel were again present and also as the appellant was not present, the appeal was dismissed in default by the learned Judge.

6. Order 3 Rule 4 of the C.P.C. provides for the appointment of an advocate and the advocate continues his engagement through out the pendency of the proceedings. An advocate can be appointed only by a document in writing signed by a litigant or his duly authorized agent. The appointment of an advocate can be brought to an end by the client or by the advocate himself. But his engagement does not come to an end without the leave of the Court sought by the client or the advocate himself. The leave must be sought from the Court in writing. The appointment once made would continue to be valid for the purposes of review or an appeal or similar proceedings. No advocate shall act for any person in any Court unless he is so authorized in writing by the litigant. From the provisions of Order 3 Rule 4 it is clear that unless the leave of the Court is sought in writing, the advocate will continue on record for representing his client. In the present case Shri Lonial, advocate had filed his Vakalatnama along with Anandbir Singh Kalra, advocate. Where more than one advocates file their Vakalatnamas at the initial stage itself there are bound to be difficulties in the matter of service and appearance. Advocate Anandbir Singh Kalra did not appear in any of the proceedings before the Court but he signed more than 10 applications for adjournments and also conducted inspection of the file on behalf of the appellant. Shri Lonial, advocate appeared before the Court on the first date of hearing and during the hearing requested the Court to summon the record of the trial court and the ordered accordingly. This was a representation to the Court that Shri Lonial was alone engaged by the appellant to appear on his behalf. Till the time the administrative file was called by me it was not known to the Court that another advocate Anandbir Singh Kalra had also signed Vakjalatnama along with Shri Lonial, advocate. On 24-1-1985 Shri Lonial, advocated was not present. Avadh Behari, J. inspire of the non-appearance of advocate Lonial did not dismiss the matter on that date out directed to be listed on 25-1-1985. Only when on the second day none appeared for the appellant, the appeal was dismissed in default by the learned Judge. The order of the learned Judge was not only in keeping with Order 3 Rule 4 but was fully justified on the facts of the case.

7. The next question is whether the appellant had shown sufficient cause for the restoration of the appeal. The appeal was dismissed in default of non-appearance of Lonial, advocate. thereforee, he ought to have moved the application for restoration explaining his absence from the Court. But he has not filed the application on behalf of the appellant and another advocate namely Shri R.K. Anand has filed the application. The engagement of Lonial, advocate continued till the date on which the appeal was dismissed in default. As neither Lonial, advocate nor the appellant had sought the leave of the Court in writing for the determination of his engagement, the Court had not granted leave to Lonial, advocate for the withdrawal from the case. The filing of Vakalatnama by advocate Anand is thereforee, of non-consequence. But apart from the strict legal position there are other facts which disentitle the appellant to any discretionary relief by way of restoration. In the application for adjournment filed by Anand, advocate he stated that no adjournment were sought in the appeal earlier. We will presume at this stage the advocate Anand made the statement in the application on the instructions of the appellant. On 24th of September 1984, the Joint Registrar, while granting on adjournment had observed that the adjournment was being granted as a special case and there will be no further adjournment. A special case had to be made probably because 10 adjournments were already granted by the Joint Registrar by that date. All the applications earlier were signed by the Joint Registrar by that date. All the applications earlier were signed by the appellant himself. In the light of this order of the Joint Registrar statement in the application dated 15th January 1985 that he adjournments were sought earlier amounts to suppression of material facts and an attempt at positive deception of the Court on the part of the appellant. Moreover, he has engaged 5 advocates one after another without obtaining the leave of the Court to discharge to earlier advocates. The purpose of engagement of these advocates was to appear on different dates before the Court and to obtain adjournments. The appellant has thus not only not shown a sufficient cause but has practiced deception on the Court. It is immaterial that the appeal was not yet admitted and it was being adjourned only for being listed for admission. Although in a general sense no prejudice is caused to the the other side, still the conduct of the appellant is such that no indulgence can be shown to him. The original eviction decree was passed against the appellant in 1976 and till this date he has managed to continue in the premises. There was no stay of the execution proceedings. But that does not obliterate the fact that the appellant deliberately delayed the hearing of the appeal creating an impression on the trial court that the appeal was pending in this Court.

8. For these reasons the restoration application is dismissed.

9. Adjournments and delays in Court are matter of public comment. People are watching us from outside. They hold Court and lawyers responsible for delays. I may refer to observations of Shri B.K. Nehru, Governor of Gujarat made in his lecture on the Administration of Justice;

'Governmental operation whether administrative or judicial, are by the very nature monopolistic. There is in all of them a strong tendency to prescribe rules, procedures and conventions which suit their convenience. A particular case of this universal proclivity is a coziness with which the Bench and the Bar in India accommodate each other unequalled in any other country in the world. Adjournments are often given for the convenience of counsel ; he may be engaged in any other case having taken up, as all successful counsels do. far more than they are capable of handling ; or he may have disappeared even to attend a wedding in the family. No case should ever be adjourned for the convenience of the counsel.'

(Lecture on Administration of Justice under the auspices of Documentation Centre for Corporate and Business Policy Research, New Delhi).

10. We put blind faith in the lawyer appearing before us and will continue to do so. Can we ask him t show his authority? Can we doubt the statement made at the Bar or to the administration officers of the Court? We will not do it because the bulk of the Bar is maintaining the professional standards and not abusing the trust, Deviations are few and far in between. But that apart, our article of faith is at stake. If we suspect a lawyer, people will suspect the whole Institution and that will be the beginning of the end of the Institution.

11. The case has exposed some of the wick nesses in the present practice of appearance of advocates in the court and the procedure for adjournment. It is necessary to frame rules to supplement Order 3 on the following lines:

'If more than one advocates file a Vakalatnama at the initial stage, the litigant must specify which one of them will act on his behalf. Only one advocate should be responsible for filing the applications in the Court and before the administrative officer of the Court. Such advocate should be the only advocate on whom the service shall be effected by the Court at the future stage in the litigation. The advocate who files his Vakalatnama shall ordinarily be the advocate who will act and plead on behalf of his client. However, if he wants to engage any other advocate for pleading, he must file a memorandum of appearance of the pleader in writing in the Court on the date of the hearing. No counsel other than the one who has filed his Vakalatnama or whose memorandum of appearance is filed in the Court shall be heard by the Court. In pending proceedings where an application for adjournment is moved before the Joint Registrar the name of the advocate appearing earlier in the proceeding should clearly stated. No application for adjournment should be allowed by the Joint Registrar unless the previous record of the proceedings is checked. No adjournment should be granted by the Joint Registrar on the date when the proceeding is already listed before the Court. Request for withdrawal of an advocate from the proceeding or for engaging any other advocate should be made in writing either by the advocate or by his client. The Registrar may dispose of his application. However, if there is a dispute between the advocate and client in regard to fees or similar matters, the reference may be made to the Court on the administrative side. Ordinarily, an endorsement on the new Vakalatnama (by the previous advocate) that he has no objection to the change should suffice for the purposes of withdrawal by one advocate and engagement of another advocate. Such endorsement would mean that there is no dispute whatsoever between the advocate previously engaged and the client. The Vakalatnama with 'No objection' endorsement by a previous advocate should be placed before the Registrar who will pass an appropriate order effecting a change of the counsel.'

12. The application for restoration is dismissed with cost of Rs. 500/-. The appellant shall deposit the said amount with Legal Aid and Advice Board, patiala House, New Delhi, within a fortnight from today.


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