Kaushal Commodities Pvt. Ltd. vs Brindaban Mondal

Kalyan Jyoti Sengupta, J.—On February 1, 2001 when the matter was heard and submission was made by Mr. Soumitra Sen, Mr. Das was not available and this Court recorded the submission and contention as follows:

This is an application for recalling of my order dated 12 January, 2000 and this application was made on or about 3 March, 2000. Normally application of this nature should be filed within 30 days from the date of passing of this order. However, the Petitioner has sought to give an explanation as to why he could not come at the earlier stage. He has stated that he came to know about the passing of this order on or about 14 January, 2000. Since the erstwhile Advocate on Record Mr. Debasis Kundu did not cooperate in any manner and even he did not appear when the order was passed and all the time Mr. Debasis Kundu kept him in dark, so he obtained change in favour of the present Advocate on Record. After necessary searches and inspection of the records and documents it was found that everything went unrepresented though Mr. Kundu was engaged. He also contends that the earlier order passed on the suggested terms was illegal and invalid since it was done on the basis of the concession being made by the learned lawyer who was not authorized to make any concession. It is a fit case to recall the order as the Advocate or Record was not diligent enough. In fact his conduct as a lawyer is not befitting. Therefore, the fault of the learned lawyer should not be attributed to the litigant because he was completely dependent on him and bona fide rest the entire matter with the learned lawyer hoping that he would take care of everything. Unfortunately expectation was frustrated. Since it was personal allegation made against the erstwhile Advocate on Record, Mr. Kundu, so I passed an order directing Mr. Kundu to file an affidavit to tell his version in apropos the allegation of the Petitioner- He has filed an affidavit. The Petitioner represented by Mr. Das has also filed another affidavit which is kept on record dealing with the statements and averments made by Mr. Kundu. Today, when the matter was called on the learned Advocate on Record of Mr. Das prayed for an adjournment, as Mr. Das at that time was not available. I refused to grant adjournment. Mr. Sen who is opposing this application," also opposed to such prayer for adjournment. So I had to refuse. Thereafter, I asked Mr. Sen to assist me. While he was assisting Mr. Das told me that he would make his submission on the next date. Therefore, I direct Mr. Sen to complete his submission of behalf of his client. Mr. Sen submits that not only this is a frivolous application based on false allegation and dishonest too., the application and the Notice of Motion on which I passed the order, were duly served upon Mr. Kundu and he received it. Falsehood of the petitioner will be apparent from the fact that the order passed by Justice Kabir was on the basis of thee suggestion put in writing and signed by the Petitioner himself. In terms of the aforesaid suggested order his client has paid money and the same was accepted. After having done everything now the Petitioner has designed the falsehood. If this be the conduct of a litigant, he should not be given any indulgence. He has also drawn my attention to the relevant portion of the affidavit of Mr. Kundu and submitted that it was the positive instruction of the Petitioner to Mr. Kundu that the Petitioner would not contest the aforesaid application as he had sought for instruction. Under such circumstances it cannot be said that Mr. Kundu. was at fault so as to get the benefit of the so-called panacea ground of laches of the advocate on record. However, this matter will be heard on the next date of hearing, that is, on Thursday next (08.02.2001) when this will appear as a ''Part-heard matter''. The contempt matter is adjourned till that date.

On February 8, 2001 Mr. Das made his submission and contended that apart from other allegations raised on behalf of the Plaintiffs admittedly Mr. Debasis Kundu learned lawyer did not appear on the date when the order was passed. He draws my attention to the relevant paragraphs of affidavit affirmed by Mr. Debasis Kundu and submits that he could not appear because of his inability owing to an accident he met and could not reach Calcutta from Siliguri.

He further submits that when there was understanding between Debasis Kundu and the Advocate-on-Record of the Plaintiff that the matter should not be pressed for hearing on the day in view of non-availability of Mr. Kundu it was in all fairness the learned lawyer for the Petitioner/Plaintiff should have drawn attention of the Court of the arrangement. Had it been done so this Hon''ble Court would not have taken up this matter so much so his client would have had an opportunity of being represented by his learned lawyer. Therefore, according to him, there exist lapses on part of the learned lawyer either deliberate or in deliberate by not making his appearance on behalf of his client. He contends, that this constitutes sufficient cause and/or reason. The law is now well settled for which no decision is required to be cited.

Having heard Mr. Sen and Mr. Das as well as Mr. Kundy in this matter I find that the allegation of failure and/or negligence of Mr. Kundu has been attributed as to be a sufficient cause. Therefore, it is necessary to examine the averment made in the affidavit by Mr. Kundu. It is true that larches and negligence on part of the learned lawyer is a sufficient cause and/or reason for which the Court can hold the Petitioner was prevented from appearing in a matter at the time of hearing. To my mind, the learned lawyer will appear for hearing on behalf of the litigant when there is instruction to appear to that effect only and not always. The power and/or authority given by the litigant by Vakalatnama is of course omnibus one but it is the prerogative of litigant at any point of time to withdraw the power either by necessary implication or expressly, as a whole or in part. It is the choice of the litigant either to contest or not to Contest in any litigation either original one or offshoot of original. So I am to examine here whether Mr. Kundu had instructions to appear in this matter for the purpose of opposition or not.

From the affidavit of Mr. Kundu I find that in spite of the petition being the grounds of the Notice of Motion on which the order was passed, was brought to the notice of the Petitioner herein, he did not give any instruction to oppose the same. From the averment of the affidavit of Mr. Kundu it appears that the Petitioner really settled this matter with the Plaintiffs and in fact he did negotiate with the Plaintiffs'' learned lawyer even without notice and knowledge of Mr. Kundu. It is true from the affidavit of Mr. Kundu it appears that he had intention to appear in Court in this matter (may be to say no instruction to oppose), but he could not do so by reason of accident he met. As I have already observed a lawyer''s appearance is not for the sake of appearance on behalf of element but should appear for the purpose for taking defence and for opposition. I am of the view nonappearance of Mr. Kundu in this matter could have been material had the Petitioner left instruction with Mr. Kundu to oppose the same. So, appearance or no appearance does not make any difference in this case.

It further appears from affidavit of Mr. Kundu that Petitioner was aware of the proceedings on which the order was passed. In para. 2(u) Mr. Kundu discloses the fact as. follows:

The Petitioner was however aware of these proceedings in as much as I had handed over to him a Xerox-copy of the said application being G.A. No. 5101 of 1999 on or about 20th December, 1999. After the order dated 22nd December, 1999 was passed, the Petitioner came to my office and learnt about the same from me. I told him that since the matter was fixed on the first Monday after Christmas Vacation and in as much as I would be out of Calcutta oh that date. I had already requested Mr. Subhas Bhattacharjee not to do the matter until I returned to Calcutta to which he had agreed.

Therefore, the Petitioner has resorted to falsehood to the extent of saying that he was kept in dark by Mr. Kundu and he did not know about this proceeding. In para. 2(x) Mr. Kundu in no uncertain term clearly states as follows:

The Petitioner after receipt of the said order from me however did not instruct me to make any application for recalling the same. On the contrary he professed that the matter would be shortly settled despite the aforesaid order and in this regard he would contact me subsequently.

Now question remains whether I should believe the litigant or his learned lawyer. My inclination is always to believe the lawyer who all the time had represented previously and I do not find any latches and negligence of Mr. Kundu in this matter at least. The Petitioner has not come with clean hands as he had resorted to falsehood. The order was passed on January 12, 2000, whereas the instant petition was made on April 6, 2000. A litigant who had given instruction to his learned lawyer not to appear in a particular matter cannot be allowed to turn himself round and contends otherwise. Therefore, this application fails as no cause much less sufficient cause has been made out.

Accordingly, this application is dismissed with costs assessed at 30 gms. to be paid by the Petitioner to the Plaintiffs-Respondents.

However, this judgment and order will not affect the pending application for recalling of the order passed by the Hon''ble Justice Kabir.

Stay of operation of this judgment and order is prayed for and stay is granted for a period of ten days from date.

Let Xerox certified copy of this judgment and order be supplied to the parties, if applied for.