P.D.T.TRADING COMPANY Vs. DIGANT

JUDGEMENT

(1.) The petition challenges the judgment dtd. 16/06/2021 passed by the learned District Judge-15, Nagpur, whereby the appeal filed by the present petitioners, against the judgment and decree dtd. 04/03/2015 passed by the learned Additional Judge, Small Causes Court, Nagpur in Regular Civil Suit No. 85/2014, granting a decree for eviction under Sec. 16(1)(g) and (n) of the Maharashtra Rent Control Act, has been dismissed.

(2.) Shri Bhongade, learned counsel for the petitioners submits that since the counsel before the learned Small Causes Court, refused to act on behalf of the petitioner no. 1/tenant and had filed no instruction pursis at Exh. 42 dtd. 26/11/2014, the only course available for the learned Small Causes Court was to have acted in consonance with Clause 660(4) of the Civil Manual, which makes it necessary for the counsel, seeking to withdraw his appearance for a party, to serve a written notice of his intention to do so, on his client at least seven days in advance before the date fixed and it is only upon the Court being satisfied that no inconvenience is likely to be caused to the Court or the client, that such permission to withdraw can be granted to the counsel. It is contended that in the instant case, though a notice was given on 20/11/2014 (pg. 63) and except for postal receipt (pg. 64), which indicates that the notice was posted on 25/11/2014 at 14:52 hours, there is nothing on record to indicate that the petitioner no. 1 was served. No instructions pursis, was filed on 26/11/2014, which would indicate, that there was a violation of the requirement of Clause 660(4) of the Civil Manual and therefore as on the above count, the petitioner no. 1/tenant remained unrepresented, there was a lack of reasonable opportunity to the petitioner no. 1 to defend the proceedings or put forth his case as the suit before the learned Small Causes Court was decided without cross-examination of the witnesses of the landlord or any witness being examined by the petitioner no. 1/tenant. Reliance is also placed upon the rules framed by the High Court under Sec. 34(1) of the Advocates Act 1961 and specifically Rule 8(4) of Chapter XXXII, Schedule VII of the Bombay High Court Appellate Side Rules, 1960 (for short, "the Rules of 1960"), which requires a notice to be served upon the client of at least seven days in advance, by a counsel seeking to withdraw his Vakalatnama. In support of the above proposition, reliance is placed upon Govinda Bhagoji Kamable and others Vs. Sadu Bapu Kamable and others, 2005 (1) Mh.L.J. 651 and Rameshkumar Vyankatswami Poona Vs. Swami Vivekanand Co-operative Housing Society, Shrirampur and another, 2018 (6) Mh.L.J. 227. It is submitted that specific grounds were raised in the appeal filed against the aforesaid judgment and decree of the learned Small Causes Court, but these have been negatived by the learned Appellate Court by holding that the Trial Court had not committed any error in proceeding with the matter in view of the no instructions pursis filed by the learned counsel for the petitioner no. 1/tenant below Exh. 42. Though the judgment of the Appellate Court also considers the position on the merits, Shri Bhongade, learned counsel for the petitioners has not addressed the Court on merits but has restricted his arguments to the requirement of Clause 660(4) of the Civil Manual and Rule 8(4) of the Rules of 1960 framed under Sec. 34(1) of the Advocates Act.

(3.) Shri R.M. Sharma, learned counsel for the respondent supports the impugned judgments. He submits that the remedy available to the petitioner no. 1/tenant was to have moved an application under Order 9 Rule 13 of the Code of Civil Procedure and not to have filed an appeal only on the grounds of the aforesaid proposition, sans merits. He further submits that merely because the learned counsel has filed no instructions pursis, that does not absolve the petitioner no. 1/tenant, from his duty, to approach his counsel and impart instructions and the petitioner no. 1/tenant having failed to do so, no leeway can be granted to him, for which reliance is placed upon Sunil Vitthal Jadhav Vs. Shamji Shankar Gawali, 2010 (Supp.) Bom. C.R. 820.