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Judgment
The matter comes upon an application filed by respondent No.4 under Section 151 CPC for modification of the order dated 25.01.2021.
By order dated 25.01.2021 it was ordered by Court as under:-
In terms of the order dated 22.01.2021, the respondent No.4 is present in person.
An affidavit has been filed by the respondent No.4, inter alia, seeking to explain the conduct, which was noticed by the Court on 22.01.2021.
The affidavit is taken on record. Parties were heard on the second stay application.
During the course of submissions, learned counsel for the respondent No.4 proposed that the respondent No.4 would remove the construction raised
during the pendency of the application i.e. the construction other than 2 shops and 4 toilets & bathrooms in the suit premises and prays for time for
doing the needful.
Needful may be done i.e. removal of the construction other than 2 shops and 4 toilets & bathrooms before the next date.
List on 25.02.2021.
Till the next date, no further construction shall be raised and the shops in question shall also be not let out by the respondent No.4.
A perusal of the order indicates that after the affidavit was filed by respondent No.4 explaining her conduct, which was noticed by the Court in its
order dated 22.01.2021, indicating blatant wrongdoings on part of the respondent No.4 in attempting to hoodwink the Court during pendency of the
second stay application.
In the application, qua the proposal given by her counsel for removal of construction other than two shops and four toilets and bathrooms before the
next date, submissions have been made as under:-
That the applicant is illiterate lady and is not aware of Court's procedure. The applicant was and is ready and willing to deposit Rs. 10,000/- per
month in lieu of use of property as per the directions of this Hon'ble Court. The consent was given by her counsel and without convey the opinion and
view of Hon'ble Court to the applicant / respondent, the proposal was given, therefore, such consent of counsel is against the interest of applicant, in
view of submission made hereinafter.
It is alleged that the consent was given by her counsel without conveying the opinion and view of the Court to the applicant / the proposal was given
and that such consent of the counsel is against the interest of the applicant.
The said submission is on its face false, inasmuch as, the respondent No.4 herself was present in person before the Court on 25.01.2021 on account of
the direction directed 22.01.2021, wherein, the said respondent No.4 was directed to remain personally present before the Court and her counsel was
directed to complete his instructions based on what was indicated in the order sheet.
Obviously, the present application has been got filed by engaging new set of counsel other than the one who had appeared for the respondent No.4
before the Court on all the previous dates i.e. 23.11.2020, 01.12.2020, 04.12.2020, 08.12.2020, 22.01.2021 and 25.01.2021 only with a view to take a
somersault. The filing of the application of the present nature, seeking to disown as to what was proposed on her behalf before the Court in her
presence on 25.01.2021 and that also through another counsel cannot be countenanced.
The submissions made, are per se incorrect, inasmuch as, during course of submissions it was obvious that the respondent No.4, had during pendency
of the application, raised construction and in fact had not even informed her counsel in this regard, regarding which a specific averment was made in
the affidavit filed on 25.01.2021 as under :-
8.
Once the above aspect about raising construction during pendency of the application and that also after filing affidavits was apparent, the counsel had
made the proposal in presence of the applicant, which in the circumstances of the case was accepted by the Court and the order was passed.
Looking at the affidavit filed alongwith application, which has made reference to an alternative proposal by the Court prior to passing of the order
dated 25.01.2021, indicates that the applicant has claimed that the said averments were true and correct to her personal knowledge when, admittedly,
the respondent was not before the Court on any previous date before 25.01.2021 as such the plea raised regarding the applicant being not conveyed
the view of the Court and the proposal was made by the counsel without consulting the applicant has no basis In view thereof, the application being
ex-facie incorrect, based on wrong facts by way of distorting the proceedings, which transpired before this Court on 25.01.2021 and that also by
counsel, who was not before the Court on 25.01.2021 cannot be countenanced.
The application is, therefore, rejected. List on 25.02.2021 as already ordered.
Interim order is extended till the next date.