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Thakursingh and ors. Vs. Bhaironlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 112 of 1954
Judge
Reported inAIR1956Raj113
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 3, Rule 4 - Order 20, Rule 1 - Order 47, Rules 1, 1(1) and 7; Limitation Act, 1908 - Sections 5
AppellantThakursingh and ors.
RespondentBhaironlal and ors.
Appellant Advocate R.K. Rastogi and; D.P. Gupta, Advs.
Respondent Advocate P.C. Bhandari, Adv.
DispositionRevision dismissed
Cases ReferredIn Manickam Pillai v. Mahudum Bathummal
Excerpt:
- - a good many other grounds were also taken but the lower court rightly held that they were more in the nature of grounds of appeal. mahudum bathummal',1925, mad 21 (air v 12) (a) in which it was held that the statute does not require the writing containing' the withdrawal by the pleader of his vakalat to be in any specified form and that the endorsement on the back of the plaint that the pleader had no instructions except to apply for an adjournment was a good written withdrawal'.8. it has been argued that the lower court committed an error apparent on the face of the record inasmuch as it did not at all go into the question whether there were sufficient grounds for withdrawal by the pleader or not and simply refused leave to withdraw on the ground that the application, was not made.....ordersharma, j.1. this is an application for revision by the defendants thakursingh and bans singh against the order of the learned munsif, dholpur, refusing to grant an application for review of the ex parte judgment dated 8-7-1953.2. the facts are that the opposite party bhaironlal and bal kishan filed a suit for the recovery of rs. 423/- against the applicants. this suit was instituted in the court of munsif. bari. sri narain swaroop appeared as a pleader for the defendant-applicant's in this case. the entire evidence of the plaintiffs and the defendants was recorded before the munsif, bari and the plaintiffs' arguments were also over.arguments were made on behalf of the defendants on 8th, 20th and 21st august, 1952. the case came up for remaining arguments of the defendants on.....
Judgment:
ORDER

Sharma, J.

1. This is an application for revision by the defendants Thakursingh and Bans Singh against the order of the learned Munsif, Dholpur, refusing to grant an application for review of the ex parte judgment dated 8-7-1953.

2. The facts are that the opposite party Bhaironlal and Bal Kishan filed a suit for the recovery of Rs. 423/- against the applicants. This suit was instituted in the Court of Munsif. Bari. Sri Narain Swaroop appeared as a pleader for the defendant-applicant's in this case. The entire evidence of the plaintiffs and the defendants was recorded before the Munsif, Bari and the plaintiffs' arguments were also over.

Arguments were made on behalf of the defendants on 8th, 20th and 21st August, 1952. The case came up for remaining arguments of the defendants on 22-8-1952 but on that date arguments could not be heard and the case was fixed for the remaining arguments of the defendants on 29-8-1952. On the last mentioned date the arguments on behalf of the defendants were concluded and 12-9--1952 was fixed for the hearing of the reply on behalf of the plaintiffs.

The Munsif, however, who had heard the case till then, was transferred and no other Munsif was posted in his place. Thereafter sometimes parties appeared and sometimes they did not appear and ultimately the case was transferred from the Court of Munsif, Bari to the 'Court of Munsif, Dholpur.

On 20-5-1953 the case was put up before the Munsif, Dholpur, who fixed 20-5-1953 for arguments and ordered that a notice should be issued to the counsel for the defendants about the said date. Such a notice was issued but Sri Narain Swaroop pleader for the defendant applicants noted down on the notice that he had no concern with the case and, therefore, his clients be personally informed.

Learned Munsif, when he took up the case on 28-5-1953, held that the notice to Sri Narain Swaroop was a notice to the defendants and as no leave had been obtained by him for withdrawing from the case under Order 3 Rule 4, Civil P. C., the notice to the counsel was sufficient in the circumstances of the case.

After making this order the Court heard arguments on behalf of the plaintiffs and fixed 29-5-1953 for judgment. Judgment could not be pronounced on 29-5-1953 nor on 30-5-1953 which was further fixed for the pronouncement of the Judgment and 6-7-1953 was fixed. On the last mentioned date also the judgment could not be pronounced but it was ultimately pronounced on 8-7-1953 and the suit was decreed ex parte.

3. The applicants neither filed any appeal against the ex parte decree nor filed any application for the setting aside of the decree under Order 9 Rule 13. He, however, filed the application for review out of which this revision application has arisen on 5-10-1953.

Various grounds were taken in the application for review but I am concerned only with the following grounds as out of the grounds taken in the review application the following alone have been pressed before me:

(1) That a notice ought to have been served on the defendants after the transfer of the case to the Court of Munsif, Dholpur but no such notice was served and

(2) that no notice was given to the applicants of the date of delivery of judgment and the judgment was delivered in their absence.

4. It was stated that the mistake of not informing the applicants of the date of hearing in the transferee court and the date on which the judgment was to be delivered were mistakes apparent on the face of the record. On the last mentioned point the lower Court held that a notice to the pleader of the defendants was in law a notice to the defendants and as a notice of the date fixed for hearing had been served on the pleader, there was no defect of omission to serve notice according to law.

On the second ground, it was held that the notice of final hearing was served on the defendants counsel and when neither the defendants nor their counsel appeared on the date fixed, ex parte arguments were heard and the judgment was ultimately pronounced on 8-7-1959. As the defendants had defaulted to appear on 28-5-1953, the date fixed for hearing, it was no longer necessary for the Court to give them any notice of the date of delivery of judgment.

A good many other grounds were also taken but the lower Court rightly held that they were more in the nature of grounds of appeal. Giving his finding against the defendants on all the grounds raised, learned Munsif dismissed the application for review on 15-5-1954.

5. In this application for revision besides the two grounds, which have been noted above, a number of other grounds have also been taken. The grounds taken in the application for revision are briefly given below:

1. That the lower Court committed an illegality or material irregularity in the exercise of its jurisdiction in not applying its mind to the fact that in spite of the order in the order sheet dated 8-7-1953, the petitioners were never informed of the judgment dated 8-7-1953:

2. That Sri Narain Swaroop was appointed to act as a pleader for the defendants only in the Court of Bari and had no authority to appear for the applicants in the Court of Munsif, Dholpur :

3. That the lower Court acted with material irregularity in the exercise of its jurisdiction in not taking into consideration that the endorsement by the pleader on the notice was an application for leave to withdraw from the case and the Court decided the main case without applying its mind to the merits of the pleader's prayer;

4. That the lower Court acted with material irregularity in not applying its mind to the fact that the notice was served on the pleader of the defendants only on 26-5-1953 at 1 P. M. and 28-5-1953 was fixed for hearing. Such a notice cannot be said to be a reasonable and sufficient notice.

5. That the lower Court committed an, illegality or material irregularity in the exercise of its jurisdiction in not giving a chance to the applicants to rabut the presumption that no information of the date of hearing was given to them, and

6. That the lower Court committed material irregularity in holding that notice to the pleader is sufficient compliance of Section 24, Civil P. C. while the pleader was seeking permission to withdraw from the case.

6. All the above acts of the lower Court have been described as errors apparent on the face of the record and it has been prayed that the order of the lower Court rejecting the application for review be set aside and the lower Court be directed to hear and dispose the case according to law.

7. I have heard Sri R. K. Rastogi on behalf of the applicants and Sri P. C. Bhandari on behalf of the opposite party. Sri Rastogi has laid the greatest stress upon the fact that Mr. Narain Swaroop counsel for the defendants had noted on the notice for hearing on the 28-5-1953 that he had no concern with the case and the defendants be personally informed and that his endorsement shows that notice was served on him on the 26-5-1953 and there was hardly any time for him to inform his clients.

It has been argued that it is not necessary that any formal application should be made by a pleader under Order 3, Rule 4, of the Civil P. C. for leave to withdraw. It has been argued that the endorsement made by the pleader on the notice for hearing amounted to a writing signed by the pleader for leave to withdraw from the case & the lower Court was not justified is not allowing the pleader to withdraw from the case on the sole ground that no application had been made for withdrawal.

Reliance has been placed upon a Pull Bench ruling of the Madras High Court in the case of --'Manickam Pillai v. Mahudum Bathummal', 1925, Mad 21 (AIR V 12) (A) in which it was held that

'the statute does not require the writing containing' the withdrawal by the pleader of his vakalat to be in any specified form and that the endorsement on the back of the plaint that the pleader had no instructions except to apply for an adjournment was a good written withdrawal'.

8. It has been argued that the lower Court committed an error apparent on the face of the record inasmuch as it did not at all go into the question whether there were sufficient grounds for withdrawal by the pleader or not and simply refused leave to withdraw on the ground that the application, was not made in accordance with law.

It was argued that in dismissing the application for review the lower Court committed an illegality or material irregularity in the exercise of its jurisdiction as it did not apply its mind to the question whether the ignoring of the endorsement on the notice by the pleader amounted to the mistake apparent on the face of the record or not.

9. It was further argued that the judgment dated 8-7-1953 was not brought to the notice of the applicants by the Court and this was also an error apparent on the face of the record and review application ought to have been allowed on this ground as well.

10. On behalf of the opposite party, it has been argued that in the first instance the endorsement by the pleader Mr. Narain Swaroop on the notice could not be taken to be a request in writing for withdrawal from the case within the meaning of Order 3, Rule 4, Civil P. C. It was argued that the notice to the pleader was notice to the clients and the Court had no reason to send a notice to the defendants personally unless it had allowed the pleader to withdraw.

As the pleader was not allowed to withdraw, there was no necessity to send any notice to the defendants and as no appearance was made on 28-5-1953 in response to the notice, the Court was perfectly justified in proceeding ex parts with the case. A number of rulings were referred to in order to show that unless a pleader has been allowed to withdraw by Court, notice served on him on behalf of his clients would be good and valid notice to clients.

It was further argued that even if the endorsement on the notice in question amounted to a document in writing signed by the pleader in not accepting it as such document the lower Court simply made a mistake in law and on that ground alone no application for review could lie. As regards non-issue of notice of the judgment it was argued that the applicants had not appeared on the date of hearing and, therefore, no further notice was necessary of the delivery of judgment to them.

Further it was argued that even if such notice is necessary, the non-issue of such notice could at best entitled the applicants to condonation of delay in filing an appeal or application for review but it did not make the judgment void. Learned counsel for the opposite party also took an objection to the application for review on the ground that no application for revision lies against an order of a Subordinate Court rejecting an application for review.

For this reliance was placed upon the following rulings: -- 'Ramial v. Ratanlal', 26 All 573 (B). -- 'Lakshman Maruiti v. Maruti Lakshman' 1924 Bom 344 (AIR V 11) (C), -- 'Basaratulla Mean v Reasuddin Mean', 1926 Cal 773 (AIR V 13) (D),-- 'Viswanatham v Sreenivasa Venkata Varadacharyulu', 1943 Mad 377 (1) (E), --Jagmohansingh v. Matal Badal', 1923 Oudh 153 (Am V 10) (F),-- 'Sheocharan Dass v Mt. Jagwant Kaur', 1925 Oudh 594 (AIR V 12) (G).

11. In reply learned counsel for the applicants cited the following rulings to show that his application for revision lies even against an order of a Subordinate Court rejecting an application for review: -- 'Khasomal v. Bacho', AIR 1929 Sind 38 (AIR v 16) (H); -- 'Chinta Mani v. Debi Prasad', 1934 All 971 (AIR V 21) (I); -- 'Amar Chand v. Sukh Rau', 1955 Raj LW 26 (J) and -- 'Mohd. Husain v. Raja Babu Kothiari', 1954 Raj 23 (AIR V 41) (K).

12. I may first take up the objection which has been taken up by the learned counsel for the opposite party that no application for revision at all lies against an order of the subordinate Court rejecting an application for review.

13. Examining the rulings cited on behalf of the learned counsel for the opposite party, I find that although there are general observations in those cases that no application for revision lies against the order of a subordinate Court rejecting an application for review yet in all of them en application for revision was made on the ground either that the subordinate Courts' had committed an error purely of law or of fact.

Of course, no application for revision lies unless any of the conditions given in Section 115, Civil P. C. are satisfied. They are that either a subordinate Court should have acted without jurisdiction or should have failed to exercise jurisdiction vested therein by law or should have committed an illegality or material irregularity in the exercise of its jurisdiction.

An application for revision, does not lie purely on a question of law for which provision has been made under Section 100, Civil P. C. for a second appeal. In all those cases therefore on which reliance has been placed by the learned counsel for the opposite party, the applications for revision were rightly rejected.

But so far as the general observations are concerned, I may respectfully say that they were not necessary in the circumstances of those cases and even if they were necessary, I am constrained to respectfully disagree with the view that no application for revision lies in any case against an order of a subordinate Court rejecting an application for review.

14. I shall now show that in all the cases, which have been relied upon by the learned counsel for the opposite party, the question raised in revision was purely either a question of law or of fact.

15. In the case of -- 'Ramlal v. Ratanlal (B)' cited above, the question which the subordinate Court had to consider was whether the case ought to be re-opened on the ground of the discovery of new and important evidence which was not within the knowledge of the applicant when the case was previously heard. The subordinate Court decided that the applicant in his application for review had failed to prove his allegation.

Of course it was altogether a question of fact and no application for revision lay on that ground. The application for revision before the High Court could be disposed of on this sole ground and I may say with respect that whatever general remarks were made were merely obiter dicta.

16. In the case of -- 'Lakshman Maruiti v. Maruiti Lakshman (C)', mentioned above, it was observed that the application for review was based on the allegation that the present applicants could bring fresh evidence to prove the re-marriage of a particular woman.

It was held by the subordinate Court that there was nothing to prevent the plaintiffs (applicants for review) from producing that evidence in the lower Court but the plaintiffs made no efforts to do so, On this finding the application for review was rejected. Of course, under the circumstances, there was no ground for revision.

17. In case 'Basaratulla Mean v. Reazuddin Mean (D)', cited above, the grounds on which the application for revision was based were that the Munsif failed to exercise his jurisdiction as he misdirected himself in the interpretation of a ruling cited by him in his judgment & that in doing so he misdirected himself as to a point of law and so acted in the exercise of his jurisdiction illegally or with material irregularity.

It was held that the Munsif heard the application for review and decided it on merits. It could not, therefore, be said that the Munsif failed to exercise his jurisdiction nor it could be said that because the Munsif made merely an error of law the case came within the third ground given in Section 115, Civil P. C. namely 'acted illegally or with material irregularity in the exercise of its jurisdiction'. In this judgment there is nothing to show that any such broad propositions were laid down that an application for revision lies in any case against an order rejecting an application for review.

18. In the case -- 'Viswanathan v. Sreenivasa Venkata Varadacharyulu (E)', cited above, the application for review was based on the ground that the lower Court had decided a case subsequently to the one in which the application for review was made and in that case a different view war, taken from the view taken in the case under review.

The application for review was rejected by the -High Court. Of course the grounds taken in the review application did not come under any of the grounds mentioned in Order 47, Rule 1, Civil P. C. for review of the judgment and no application for revision could lie against such an order as there were no grounds in the case which attracted the provisions of Section 115, Civil P. C.

19. In 'Jagmohansingh v. Matal Badal (P)', cited above, the question was whether the Subordinate Judge could be said to have made a mistake as to a will which was before him in thinking that it was registered in the life time of the testator. That was altogether a question of fact and no appeal was preferred against the decree of the Subordinate Judge but an application for review was made.

The Subordinate Judge refused to review his decision on the ground that his decision was based not solely on the fact of registration in the testator's life time but also on oral evidence. Of course against such an order no application for revision lay and the application for revision was rightly disallowed. However, the following observations were made with which I respectfully disagree :

'The granting of a review is a matter peculiarly within the discretion of the Judge who passed the decree. No other Judge can hear such an application and if the Judge who tried the case refuses to grant a review, his order is by Rule 7 of Order 47 expressly declared not to be appealable, and hence no revision should be permitted'.

I do not find any basis for the view that in a case in which the order of a subordinate Court has been declared by the statute to be not appealable, application for revision is not maintainable. In fact according to law no application for revision lies to High Court against the order or decree of a subordinate Court.

It is to give relief under certain circumstances to a person against whom a non-appealable order has been pronounced that a provision for revision has been made. To deny the remedy by way of revision in a case which the order is not appealable to the High court but in which one or the other condition mentioned in Section 115 is satisfied would be to deny to such a person a remedy which has been provided by law.

20. In -- 'Sheocharan Dass v. Mt. Jagwant Kuar', (G), cited above, the ground of the application for review was that a certain document had been discovered after the delivery of the judgment. The Subordinate Court held that it was not satisfied that the applicant could not with due diligence, have obtained a copy of the document which he now sought to be introduced by means of his application for review. On this ground the application for review was dismissed.

An application for revision against the order of the subordinate Court was dismissed by the High Court and I may say with respect that it was rightly dismissed because it did not fall under Section 115, Civil P. C. No such broad proposition has been laid down in this judgment that in no case en application for revision lies against an order rejecting an application for review. The head note of this case is misleading.

21. Learned counsel for the applicants has relied upon -- 'Khasomal v. Bacho', (H), mentioned above and it was held therein that discretionary powers of revision vested in the High Court by Section 115 are not in any way controlled by the provisions of Order 47 and that such powers are intended to apply even to orders disallowing a review application.

22. Another case relied upon is -- 'Chinta Mani v. Debi Prasad', (I), and therein it was held that it is not incompetent to the High Court under Section 115, Civil P. C. to consider an application for revision against an order ot' lower Court refusing review.

23. I respectfully agree with the view taken in these rulings as it is in accordance with the provisions of Section 115, Civil P. C. It makes an order, which is not appealable to the High Court, liable to be interfered with in revision if the subordinate Court appears to have exercised the jurisdiction not vested in it by law or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity.

Revisions were entertained and the orders of the lower Courts rejecting an application for review were interfered with by this Court in cases -- 'Amarchand v. Sukhram', (J) and -- 'Syed Mohd. Hussain v. Rajababu Kothiari' (K), referred to above.

24. I, therefore, overrule the objection of the learned counsel for the opposite party that in no case the application for revision lies against an order of a subordinate Court rejecting an application for review.

25. Now coming to the particular facts of the present case. I have got to see whether the order of the lower Court refusing leave to Sri Narain Swaroop to withdraw from the case can be said to be erroneous on its very face because unless it were so no application for review lies against the decree of the lower Court.

Learned counsel for the applicants argued that the order was erroneous on its very face because the lower Court did not proceed to consider whether the endorsement of Sri Narain Swaroop pleader on the notice of the date of hearing could be treated as a writing signed by the pleader for leave to withdraw from the case. Sri Narain Swaroop had made the following endorsement on the notice of the date of hearing 'Sir, the clients be informed as I had no concern with the case.'

The lower Court did not consider this endorsement to amount to a document signed by the pleader within the meaning of Rule 4 Order 3. The view of the lower Court may be right or wrong but all that can be said is that if it was wrong it was merely a mistake in law. No request was made in the endorsement by Sri Narainswarocp that his appointment be determined nor were any reasons given why the pleader wanted the appointment to be determined.

The lower Court evidently thought that such a writing was not sufficient for determining the appointment of the pleader. It cannot be said that the order which the lower Court made was vitiated by an error on the face of the record. It was a debatable question whether such an endorsement could serve as a document in writing for obtaining the leave of the Court for determining the appointment of the pleader.

If the lower Court rightly or wrongly held the said endorsement not to be such a document, all that can be said is that at the most a mistake in law was committed and on that ground no application for review could lie. It was held by their Lordships of the Privy Council in -- 'Chhajjuram v. Neki', 19,22 PC 112 (AIR V 9) (L), that

'the words any other sufficient reason are to be interpreted as meaning a reason sufficient on grounds at least analogous to these specified immediately previously'.

The grounds specified immediately previously in Order 47 Rule 1 are

'(1) discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order made' and (2) 'some mistake or error apparent on the face of the record'.

The ground taken in this case is that the lower Court was not justified in refusing leave to the pleader Sri Narainswaroop to withdraw on the ground that no steps as required by Order 3 Rule 4, Civil P. C. were taken and that it amounted to a mistake apparent on the face of the record I do not think that it can be said that the lower Court in refusing leave to the pleader to withdraw on the ground on which it did, committed a mistake or error apparent on the face of the record or that the ground taken by the applicant was a ground analogous to a mistake or error on the face of the record.

I, am, therefore, unable to say that the action of the lower Court rejecting the application for review on this ground amounted to a failure to exercise jurisdiction vested in the lower Court or to illegality or material irregularity in the exercise of jurisdiction by the lower Court.

26. Coming to the second ground that no notice of the judgment was given to the applicants, I may say in the first instance that on 28-5-1953 on which the arguments were heard, 29-5-1953 was fixed for the delivery of judgment in Court in the presence of the party which had appeared.

On 29-5-1953 judgment could not be pronounced and an order was again made in Court before the party present that 30-5-1953 be fixed for the delivery of Judgment. Similarly on 30-5-1953 parties were called but nobody appeared and as the judgment could not be pronounced, 6-7-1953 was fixed in Court for the delivery of judgment.

On 6-7-1953 the case was again called and only the plaintiffs' counsel responded but nobody appeared on behalf of the defendants. On that date also the judgment could not be pronounced and 8-7-1953 was fixed in Court for the pronouncement of the judgment. All the dates for the delivery of judgment were fixed in Court and if the defendants or their counsel had attended the Court in, pursuance of the notice of 28-5-1953, they could have had notice of the various dates of the delivery of judgment fixed in the case.

In the circumstances of the case no separate notice was necessary to the parties of the dates fixed for the delivery of judgment. Such a notice would have been necessary if the judgment had been reserved without fixing any particular date for its delivery at the time the case was taken up in Court on the various dates fixed.

When particular dates for the delivery of judgment were fixed in Court on the dates fixed, the parties ought to have appeared on those dates & if they had done so they would have had notice of the dates fixed for the delivery of judgment. I do not think that in the circumstances of the case it can be said that any breach of Rule 1 of Order 20 Civil P. C. was committed by the learned Munsif.

27. Even if it be supposed that there was any technical breach of Rule 1 of Order 20, Civil P.C. it would not make the judgment altogether void. At the most it can be said that if the applicants had filed an appeal or an application for review on some valid ground beyond the period of limitation, prescribed, it might have been considered a sufficient reason for the condonation of delay under Section 5, Limitation Act that the party could not know about the judgment on the date it was delivered because no notice of it was given to him. I am supported in my view by the judgment of the Nagpur High Court in the case -- 'Ramchandra v. Seth Thakurdas', 1933 Nag 12 (AIB V 20) (M).

28. Learned counsel for the applicants relied upon a ruling of the Supreme Court in the case of -- 'Moran Mar Basselios Catholicos v. Most Bev. Mar Poulose Athanasius', 1954 SC 526 (AIR V 41) (N), in which it was held that if a Court assesses that a concession had been made when none had in fact been mace or that the Court misconceived the terms of the concession or the scope and extent of it, it must be regarded as sufficient reason analogous to an error on the face of the record.

In the present case such question does not arise. The ground taken by the learned counsel is that the lower Court totally ignored the endorsement and did not consider it to be a document in writing signed by the pleader as required by Order 3, Rule 4, Civil P. C. It is not that the endorsement was altogether ignored but it was not considered to be a document as contemplated by Order 3 Rule 4. This at the most can be said to be a wrong view of law but it cannot be said to be a mistake or an error apparent on the face of the record or a ground analogous to a mistake or error apparent on the face of the record.

29. Although I somewhat sympathise with the applicants that an ex parte decree was passed against them on account of the fault of their pleader yet I am unable to give them any relief on an application for review as on such a ground an application for review does not lie. The proper remedy for them would have been an appeal or an application for setting aside' the ex parte decree.

30. It has been held in a number of cases that service on the pleader is service on his client and that the appointment of the pleader continues unless with the leave of the Court it is determined by a document in writing signed by the pleader or the party. It was held in the case of -- 'Babui Rahika Debi v. Ramasray Prasad', 1930 Pat 403 (AIR V 17) (O), that the appointment of a pleader may be determined either by the client or by the pleader, but in every case it can be done only with the leave of the Court.

If on a client's application the appointment is not determined, sufficient ground not having been shown for giving the leave of the Court, the appointment continues until all the proceedings in the suit are ended.

31. In -- 'All India Reporter Ltd. v. G. D. Moghe', 1950 Nag 110 (AIR V 37) (P), it was held that it is not open to a counsel to withdraw or to a party to terminate the services of its counsel without leave of the Court and that the Court is the best judge to decide if the termination should be made without prejudice to the trial. Power 13 conferred on the Court to decide whether the appointment should be terminated.

32. In -- 'Jugal Kishore v. Kapil Chandra', 1934 Pat 592 (AIR V 21) (Q), it was held that the only method by which a pleader can avoid his duty of communicating notices served upon him is to file a document in writing under Order 3, Rule 4, Sub-clause (2) of the Code showing that his authority is determined.

33. In Manickam Pillai v. Mahudum Bathummal (A)', referred to above on which reliance has been placed ay the learned counsel for the applicants the pleader had made an endorsement on the back of the plaint that he had no instructions except to apply for an adjournment. The question was referred to a Full Bench whether under such circumstances the pleader can be deemed to have appeared and the reply was that he cannot be deemed to have appeared.

Of course it may be that after the pleader has withdrawn on making an endorsement that he had no instructions to proceed with the case except making an application for an adjournment, it may be taken that the party or pleader cannot be deemed to have appeared but the ruling does not lay down that although no leave has been given to the pleader to withdraw, the pleader would be deemed to have withdrawn his appointment with the leave of the Court even when the leave has been refused. Learned counsel for the applicants relied upon the following observation:

'In our opinion the statute does not require the writing containing the withdrawal by the pleader of his vakalat to be in any specified form and it appears to us that that which he has endorsed on back of the plaint would be a perfectly good written withdrawal from his duties and obligations under the vakalat'.

If by the above observation the learned Judges meant that the endorsement made in that case amounted to a request for withdrawal, the view may not be open to much objection but if they meant as has been contended by the learned counsel for the applicants that simply such an endorsement would be enough to entitle the pleader to withdraw I respectfully disagree.

But as has been said by me above it has not been decided in so many words in that case that even though no leave is given by the Court simply an endorsement saying that the pleader has withdrawn from the vakalat would be sufficient for his Withdrawal under Order 3 Rule 4, Civil P. C.

34. The question whether a particular document is to be taken to be a document in writing signed by the party or the pleader for the determination of the pleader's appointment depends altogether upon the interpretation of that document and at the most interpretation put by the lower Court may be said to be a mistake in law but it cannot be said to be a mistake apparent on the face of the record.

35. It was argued by the learned counsel for the applicants that the notice given to the pleader was not sufficient as he received the notice of the date of hearing less than 48 hours before the time fixed for hearing. Whether the notice was sufficient or not is a question of fact and this question ought to have been taken in the lower Court so that it might have had an opportunity of deciding whether such a notice was sufficient or not.

I, however, find from the application for review filed in the lower Court that no such ground was taken and I am not prepared to interfere in revision on such a ground under the circumstances of the case.

36. I do not find any force in the applicationfor revision. The application is dismissed but considering the peculiar circumstances of this case, Iorder that the parties shall bear their costs of thisrevision as well as of the review proceedings in thelower Court.


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