Skip to content


The New Brahma Kshatriya Co-operative Housing Society Ltd. Vs. Govindlal Narbheram Thiakore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberMisc. Civil Appln. No. 966 of 1972
Judge
Reported inAIR1975Guj178; (1974)GLR689
ActsCode of Civil Procedure (CPC), 1908 - Order 17, Rule 1 - Order 41, Rules 17 and 19
AppellantThe New Brahma Kshatriya Co-operative Housing Society Ltd.
RespondentGovindlal Narbheram Thiakore and ors.
Appellant Advocate J.M. Thakore, Adv. General and; Arun H. Mehta, Adv.
Respondent Advocate I.M. Nanavati and; G.M. Vidyarthi, Advs.
Cases ReferredIn Mrigendra Nath Bir v. Dibakar Bir
Excerpt:
.....failed. it is perfectly open to the court to direct a party to make his own arrangements for the hearing of the appeal if his lawyer who has been incapacitated cannot attend the court on the adjourned date of hearing. earlier it is done, the better. 23. engagement in some other court may be a good ground for one adjournment. 24. several grounds stated in this petition, therefore, were born of loose thinking and of strange notions and they originated probably from the belief that emphatic and -categorical assertions made in that behalf, however unsound they may be, would be good enough to frighten a weak-kneed judge. omission or failure to comply with such a condition scuttles the sufficient cause which may otherwise arise from a lawyer's illness. 30. appearance on the same day, for..........on 11th july, 1972 mr. s. r. divatia, learned advocate holding brief on behalf of mr. a. h. mehta, learned advocate for the appellant told me in my chamber that mr. mehta had sustained some injury and that he would not. be able to appear in the court and proceed with this appeal. i, therefore, allowed the appeal to remain on board on 1 1th and 12th july, 1972. on 13th july, 197.2 an application was made by mr. divatia on behalf -of mr. a. h. mehta that mr. mehta would appear before the court on monday, the 17th july, 1972 and conduct the appeal and that, therefore, i should grant a accommodation until then. having noticed the undue protraction of the matter i made the following order on 13th july, 1972 on the aforesaid request made by mr. divatia.'mr. a. h. mehta, learned advocate.....
Judgment:
ORDER

1. The appellant in second Appeal No. 497 of 1963 has made this application for restoring the appeal to file. It was dismissed by me for default of appearance on 19th July, 1972. While doing so, I made a speaking order because I thought that there were unusual circumstances which required a reasoned order.

2. I made the following order:

'This appeal was placed before me for final hearing and disposal on 19th June, 1972 when the Court reopened after Summer Vacation. It was placed first on Board. On that day an application was made to me for adjourning the matter in order to enable the parties to bring about a settlement. The appeal is more than nine years old. Very reluctantly, therefore, I granted the adjournment for -a week. On 26th June, 1972 when this appeal was again placed on Board, no settlement was produced before me nor were the learned advocates ready to proceed with it. They made again a pressing application for granting an adjournment in order to enable the Parties' to settle the matter. Though I was not inclined to grant the application, I granted it on account of persistent request made by the learned advocates 'in that behalf. It was, therefore, adjourned to 7th July, 1972. 1 made it clear to the learned advocate at that time that since the appeal was more than nine years old, it would not be possible for me-to grant any further adjournment for any reason whatsoever and that if settlement was brought out between the parties, it would be quite alright, but if no settlement was brought about, then they should make arrangements to proceed with the appeal. The learned advocates for the parties took the adjournment up to, 7th July, 1972 subject to the aforesaid condition. On 7th July, 1972 the appeal could not reach hearing. 8th and 9th July were Saturday and Sunday, On 10th July, 1972 which was Monday the appeal again could not reach hearing. On 11th July, 1972 Mr. S. R. Divatia, learned advocate holding brief on behalf of Mr. A. H. Mehta, learned advocate for the appellant told me in my Chamber that Mr. Mehta had sustained some injury and that he would not. be able to appear in the Court and proceed with this appeal. I, therefore, allowed the appeal to remain on Board on 1 1th and 12th July, 1972. On 13th July, 197.2 an application was made by Mr. Divatia on behalf -of Mr. A. H. Mehta that Mr. Mehta would appear before the court on Monday, the 17th July, 1972 and conduct the appeal and that, therefore, I should grant a accommodation until then. Having noticed the undue protraction of the matter I made the following order on 13th July, 1972 on the aforesaid request made by Mr. Divatia.

'Mr. A. H. Mehta, learned advocate for the appellant has sustained some injury. This appeal is therefore adjourned to 17-7-1972. Inform Mr. A. H. Mehta that this appeal will be heard on 17-71972 immediately after the overnight part-heard matter, if any, and that it will not be adjourned on that day for any reasons whatsoever. if Mr. A. H. Mekta is not able to attend the Court on that day he may make his own arrangements for proceeding with this appeal. If none appears on behalf of the appellant, it will be dismissed for non-prosecution. This order shall be made known to Mr. A. H. Mehta himself or to him through his Clerk. Other learned, .advocates appearing for other parties may also be informed that this order applies to them as well.'

The appeal again appeared on Board on 17th July, 1972. It did not reach hearing on 17th July, 1972 and 18th July, 1972.

It has reached hearing on 19th July, 1972. 1 have waited for more than 15 minutes for the learned advocates to appear before me and to proceed with the appeal. None has, however, appeared before me. The appeal is more than nine years old. It cannot be -allowed to hang on for any more time. Even though about a month has elapsed the parties have not been able to bring about a compromise. The order which I made on 13th July, 1972 and which I have quoted above was brought to the notice of Mr. A. H. Mehta and to the notice of other learned advocates appearing in the appeal and they have signed in token of their having noticed the order. This is the tortuous way in which the, appeal has been Pending firial hearing and decision for the last one month. I see no reason why I should not proceed with it in absence of parties and their advocates' Accordingly I dismiss the appeal for default of , appearance.'

3. It is not necessary for me to elucidate the circumstances which I have recorded in the order quoted above. They, are self -explanatory and speak for themselves. I would however like to add that they were gross circumstances which only testified to a sense of irresponsibility and indifference.

4. Now when this application for restoration of the appeal to file was made, it stated many grounds to support the Prayer for restoration. They were as follows :

1. On July 12, 13 and 14, 1972, Mr. Mehta had filed a sick note which should have led to the automatic adjournment of the appeal to some other day. (It may be noted that the appeal was dismissed on 19th July, 1972).

2. I had refused in my Chamber to see a copy of the sick note which Mr. Mehta had filed. It was brought to me by Mr. Divatia in my Chamber.

3. The mere fact that -a matter is an old one is per se no ground for dismissing it for default of appearance.

4. Mr. Mehta had told the Sheristedar of my Court on 13th July, 1972 that he would like the appeal to be heard and decided. I had curtly replied through the Sheristedar that I-had already made the order dismissing the appeal for default of appearance. (It may be noted that I had made the order on 19th July, 1972 - six days after the Sheristedar was told to the above effect. I could not have said on 13th July that I had already made the order).

5. Though Mr. Mehta was under physical disability on the day when the appeal was dismissed for default of appearance, he had to attend the High Court to conduct election petition in which a parliamentary election was challenged. Election petition could not have been adjourned, it is submitted.

6. The appellant was not willing to permit Mr. Mehta to retire from the appeal because it wanzed Mr. Mehta's services. Mr. Mehta had therefore prepared a note for retirement. It was not filed in the High Court.

7. When the appeal was called out for hearing on 19th July, 1972, Mr. Mehta was busy before Divan, J. and his junior Mr. Divatia was busy before A. D. Desai and C. V. Rane, JJ. Therefore, none was present when this appeal was called out. Mr. Mehta and Mr. Divatia had informed the Sheristedar and peon of my court accordingly.

8. At the time when this appeal was called out for hearing, there were other advocates in my court who were ready to proceed with their matters as Mr. Mehta was not available.

9. My sheristedar had told me that Mr. Mehta was busy with the Election Petition and was. not likely to be available for the whole of that week.

10. It is strange that when other advocates were ready to proceed with their matters in my court I should have insisted upon disposing of Mr. Mehta's appeal first. Such an attitude on the part of a Judge is contrary to the practice of the Bombay High Court and this High Court.

11. Mr. Mehta has practised in both the High Courts and has not come across a single case where a judge dismissed for default any appeal when other advocates were ready to proceed with their matters and to engage the Court.

12. The appeal was dismissed because it was an old appeal and 'though the learned judge had ordered Mr. Mehta to transfer his brief and inasmuch as no such steps were taken by Mr. Mehta, the appeal deserved to be dismissed.'

13. Mr. Mehta believes that 'before a lawyer can transfer his brief to another lawyer, at -least there must be a consent of the client or in any case absence of Prohibition from the client against transferring of the brief.'

14. Whether to transfer a brief to another lawyer or not is a matter of discretion for the lawyer concerned. There is 'no law, rule, regulation of any nature whatsoever which authorises a Judge to command an advocate to transfer any brief.'

15. if an advocate cannot proceed with the hearing of -an appeal, he can retire from it.-In such a case, rules of the High Court require the Court to issue notice to the party concerned.

16. 'Sickness, calamity and disease can come to one and all, to judges and lawyers alike. If a judge is sick or suffers even a minor ailment, he may remain absent for a day or a month and similarly a lawyer is also entitled to the curtesy and facility. The cause of justice if it suffers will suffer equally with the absence of the judge and the lawyer concerned.'

17. The use of the word 'tortuous' in the order quoted above was strongly resented. 'To ask for an adjourment on the -around that the matter is likely to be settled is not unknown to law courts. Law courts have granted such adjournments by thousands and they are being granted even today. The learned Judge, if he was not inclined to grant adjournment could have turned down the request but to use the word 'tortuous', thereby ,Casting aspersion on the modus operandi of the lawyers of the parties to this second appeal and in particular appellant's advocate is to say the least uncalled for, unjustified, undignified and is not in consonance with the dignity of a Judge of High Court.

18. Oral application was made by Mr. Divatia on the same day for restoration of the appeal. I refused to hear it. Bombay High Court and this High Court follow the practice of restoring matters, dismissed for default of appearance, if oral application is made on the same day. Oral application is the only procedure known to Mr. Mehta and it was a Perfectly Proper Procedure. It was in consonance with the pracice referred to above.

19. I dictated the order orally to the Stenographer. It was typed out on the same day and was signed by me before 2.00 P. m. and was sent to the decree department on the same day before 4.45 p.m, There fore, there was no time to obtain a copy thereof.

20. The procedure followed by me was unusual and contrary to the practice known to the Bombay High Court and this High Court 'for a century and at least within the knowledge of Mr. Mehta within last 22 years.'

21. Oral application made to me for restoration of the appeal was turned down by me 'contrary to the known practice.'

5. These were the twenty one grounds which were originally stated in this application which has been sworn in by Mr. Arun H. Mehta,and Mr. S. R. Divatia, two learned advocates. The learned Advocate-General who appeared to support the application saw the wisdom of deleting a large number of grounds. He with his experience, sobriety and wisdom, did not think fit to press all the grounds in support of the -application and I think he rightly did so.

6. 1 have summarised all the grounds which the application originally stated in order to show that the restora tion of the appeal which was nine years old when it was dismissed for default was sought with a bang. Talks of settlement in offing are often done at the Bar and adjournments are sought. Parties to this appeal did not have any time to settle the matter during nine years during which the appeal had been pending. Wisdom of settling the dispute dawned only which the matter was about to be called out for hearing and then the learned advocate thought that it was his right to go on obtaining, adjournments after ad journments on thatgrGund and that I had no business to question the propriety of his action. If a court has to submit to such applications, I do not think, any court can function. None has any right to any adjournment on the ground of a probability of settlement. If parties settle their dispute, it is the duty of the court to record. it -and to pass decree in terms thereof. It is always within the discre tion of the Court to adjourn a matter or not to adjourn it when an adjournment is sought on the ground of settlement. If a matter has been pending on file for an inordinately long period of time and if parties have not seen the propriety of settling it during its pendency, a court will be perfectly justified in refusing to grant an adjournment on that ground. if, however, the court grants an adjournment or two on that ground, it cannot recoil on its -head and force it to go on granting adjournments after adjournments until either the settlement is -arrived at or the learned -advocate thinks fit to state to the court that talks of settlement have. failed. To accept this dictum is to throw the Procedure of the court at the mercy of a procrastinatiria -and never-ready-to-argue' lawyer.

22. Sickness is a ground which entitles a lawyer to obtain one adjournment. I say 'entitled' because he does not know that he will be ill or indisposed on a particular day nor does his client know that illness, unforeseen as it is, will prevent his lawyer on a particular day from attending the court. Therefore, one adjournment should be granted. To grant more than one adjournment or not to grant them on that ground depends upon the facts and circumstances of each case and also upon the discretion of the Court. None has any right to more than one adjournment. None can claim it. It is perfectly open to the court to direct a party to make his own arrangements for the hearing of the appeal if his lawyer who has been incapacitated cannot attend the court on the adjourned date of hearing. While granting the adjournment ' the court can subject a party to this condition. This is what I had done in the instant case, It is wrong to think that on the ground of sickness or indisposition any number of adjournments can be as of right sought and that the court is bound to grant them. It is necessary to remove this illusion. Earlier it is done, the better. If the Court has refused to grant further adjorunments and dismissed the matter for default, none can seek its restoration with a bang at the bar and as of right.

23. Engagement in some other court may be a good ground for one adjournment. It cannot be allowed to give rise to a series of adjournments or to long adjournments. If a lawyer is busy elsewhere, it is for him and for his client to devise ways and means for the hearing of the appeal. If the court while granting some time on this ground directs a party to make his own -arrangements next time if his lawyer is unable to attend the court then, it cannot in such a situation '-- said to have commanded him to engage another lawyer.

24. Several grounds stated in this petition, therefore, were born of loose thinking and of strange notions and they originated probably from the belief that emphatic and -categorical assertions made in that behalf, however unsound they may be, would be good enough to frighten a weak-kneed judge. Such an attempt ought not to have been made particularly when I had accepted Mr. Mehta's word regarding the probability of settlement of dispute between the parties even though I had really not believed it because if the parties had not seen the wisdom -and propriety of settling their dispute for 15 long years - the suit was filed in 1957 and the appeal had come up for hearing in 1972 - they could hardly have been expected to move in that direction. Next, the appeal was listed on board in the first week of May prior to the commencement of summer vacation and was called out for hearing in July. No use of these two months was made for this purpose. I granted adjournments because I did not went to displease a senior lawyer. He probably thought that by doing so I had displayed weakness. This was a wrong approach. Nothing would have been easier for him to persuade me to restore this appeal than to annex to this application the settlement arrived at between the parties. Nothing was produced, before me until November 1973 when this application was heard. These facts bear out my belief that there were no talks or probability of settlement at all between the parties. Yet I granted the adjournments out of sheer deference to Mr. Mehta. Yet, strangely enough, he thought he could achieve his purpose by making all sorts of statements against the court. They do not pay. They never day. Such a stance should never be adopted.

25. Reliance upon the alleged practice prevailing in the Bombay High Court and this High Court was also totally misplaced. I have practised at the appellate bar at Bombay longer than Mr. Mehta has done. There is no such inflexible practice or rule. Whether to accept an oral application or not depends upon the facts and circumstances of each case. If the court has made a speaking order detailing the unusual circumstances under which it has made an exparte order, it may not accept an oral application and direct a party to make a written application. Mr. Mellita., therefore, ought not to have, displayed, his temper in the application in order to impress upon me that I had violatedan inflexible practice- and committed an act of sacrilege. it would neither pay him nor would it cow me down.

26. The learned Advocate-General, therefore, saw the wisdom and propriety of striking off some of the grounds. He applied for leave to strike off those averments from the application which constitute grounds Nos. 2; 4 (later part) 8: 9; 10; 11, 12; 13; 14; 15: 16; 17: 19; 20 and 21. 1 granted the leave and he deleted them. In my opinion, he removed the bang and placed the application on an even keel.

27. Now I am required to examine the surviving grounds and determine whether they constitute sufficient reasons to restore this appeal to file.

28. The first ground relates to Mr.Mehtals illness. I have already dealt with it. It entitles an advocate to one adjournment. He cannot -claim as of right more adjournments. One adjournment was granted subject to the condition that the appellant would make his own arrangements for the hearing of the appeal if Mr. Mehta could not attend, the court on the adjourned date of hearing. It was not done. Dismissal for default of appearance resulting from omission to comply with such a condition was quite justified. Omission or failure to comply with such a condition scuttles the sufficient cause which may otherwise arise from a lawyer's illness.

29. It is wrong to say that the mere fact that the appeal is an old one is not a relevant consideration. It is one of the most relevant considerations. In all situation of this type, a court has got to take it into account. A case cannot be decided at a time only when the lawyer desires it to be decided. Delayed justice is no Justice. The court owes a duty to the society and a lawyer owes a duty both to his client and to the court. Therefore, such an -assertion can never be accepted.

30. Appearance on the same day, for restoration may be a good ground for restoration but it is never a good ground for restoration and further adjournment. A matter is not restored for further adjournment. It restored for final decision. Therefore, appearance on the same day cannot be pleaded in support of restoration, if, after restoration, a case is to be adjourned, again.

31. It is wrong to say that a lawyer has an option to retire from a case. His retirement is subject to the permission of the court. Court may not permit him to retire from a case which is as old as nine years and in which court has shown indulgence by granting adjournments for settlement. It is, therefore. no ground at all. In no case - more particularly in an old case, a lawyer as of right can say that he retires from it and that the court should issue notice to his client to enter fresh appearance on his behalf. None has any right to -put the machinery of the court out of gear.

32. Engagement of a lawyer elsewhere in some other case may entitle him to an adjournment. He cannot claim more than one. A court will be perfectly justified in refusing further adjournments on this ground otherwise senior lawyers will hold up the work of the court, the courts will have to work according to their convenience and the junior lawyers will starve.

33. These are the grounds which survive the amendment of this application I do not see much force in them.

34. The learned Advocate-General has invited my attention to two decisions in this behalf. In P. D. Shamdasam v The Central Bank of India Ltd., 40 Bom LR 238 : (AIR 1938 Bom 199) (FB) it has been laid down by a Full Bench of the Bombay High Court that if a person whose suit has been dismissed for his non-appearance appears on the same day, prima facie the court ought to exercise its discretion in his favour. It has however been laid down that such a person has no absolute right to ask the court to waive its rules in his favour and that the restoration is a matter within the discretion of the Court. It is, therefore, clear that whether restoration of a case on the application made on the same day should be granted or not depends upon the facts of each case.

35. In Mrigendra Nath Bir v. Dibakar Bir, AIR 1926 Cal 1231, it has been laid down by a Division Bench of the Calcutta High Court that absence of the appellant's lawyer on account of his being busy in a not her court is sufficient cause for restoration of the appeal. This decision does not lay down the proposition that such a cause is. a sufficient cause even though adjournments might 1have been granted earlier.

36. I have no doubt in my mind that if this application is strictly examined, it cannot be granted. But I do not want to take a very strict view of the matter. I do not want to punish the appellant for the presumptuousness and carelessness of his lawyer. Secondly Mr. I. M. Nanavaty and Mr. Vidyarthi who appear for the respondents have no objection to the restoration of the appeal to file.

37. In the facts and circumstances of this case, these two reasons are sufficient for restoring the appeal to file.

38 1, therefore, grant this application, set aside the order of dismissal for default of appearance and direct that Second Appeal No. 497 of 1963 shall be restored to file. Rule is made absolute with no order as to costs. I may add that I do not -desire to hear this appeal. It shall not, therefore, be placed before me for final hearing and disposal.

39. Application allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //