Vasantrao vs Jyoti

A.B. Chaudhari, J.—Being aggrieved by the Judgment and Decree dated 24th January, 2013 passed by District Judge-12, Nagpur, in Regular Civil Appeal No. 240 of 2008, and order dated 22nd March, 2013 passed in Misc. Civil Application No. 155 of 2013 for review, the present Second Appeal has been filed by the original plaintiff.

Regular Civil Appeal No. 240 of 2008 was filed by the original defendants before the District Judge, Nagpur, against the Judgment and Decree dated 30th March, 2007 passed by Second Joint Civil Judge [Senior Division], Nagpur, in Special Civil Suit No. 1630 of 1998 for specific performance of contract. In the said appeal, Adv. Mr. R.S. Parsodkar appeared for respondent, i.e., original plaintiff Vasantrao Gurjar and also filed Written Notes of Arguments under his signature. In the administrative transfer of the appeals, it came up before the Court of District Judge-12, Nagpur, presided over by Shri A.R. Dhamecha. Shri A.R. Dhamecha was represented by Adv. Mr. R.S. Parsodkar in his personal matters before High Court and, therefore, Mr. R.S. Parsodkar, Adv., stopped appearing in the Court presided over by Shri A.R. Dhamecha and consequently Shri Dhamecha also did not take up his matters. Consequently, Shri Parsodkar, who had filed Vakalatnama for original plaintiff-respondent Vasantrao in the appeal and the appellant herein did not appear in the said Regular Civil Appeal No. 240 of 2008. Regular Civil Appeal No. 240 of 2008 was finally heard by Mr. A.R. Dhamecha, District Judge-12 and decided on 24th January, 2013, showing the name of Mr. R.S. Parsodkar as Adv., for the respondent in the column of appearances and the appeal was allowed.

Present appellant respondent, who was then represented by Adv. Mr. R.S. Parsodkar, filed a Review Application and stated therein that Mr. R.S. Parsodkar did not, in fact, appear before the said learned Judge, because he had stopped appearing before him and the learned Judge also did not take his cases and, therefore, the Judgment in appeal delivered by Mr. A.R. Dhamecha was contrary to settled principles. The application for review registered as Misc. Civil Application No. 155 of 2013 was again heard by Mr. Dhamecha, which was argued by Mr. R.S. Parsodkar, Advocate. While deciding the Review, it was observed by District Judge-12, Nagpur, that though Mr. R.S. Parsodkar had filed his Vakalatnama for respondent in that appeal, subsequently he had given No Objection Certificate to another Adv. Ms. V.J. Khadekar and she appeared in that appeal, but the name of Mr. R.S. Parsodkar was inadvertently mentioned, as explained by the concerned stenographer, in the appellate judgment. It is on that basis, the Review came to be rejected.

In support of the present appeal, learned counsel for the appellant vehemently argued that when the appellant received the Appellate Court s summons to appear in the appeal somewhere in the year 2008, Mr. R.S. Parsodkar had filed Vakalatnama for the present appellant in the said Regular Civil Appeal No. 240 of 2008 and that appeal was transferred from one court to another and finally landed in the Court of Mr. A.R. Dhamecha and at one stage, Mediator was appointed to look into the case by order on 2nd March, 2012, when Adv. Parsodkar had given No Objection to Adv. Ms. Khadekar, who filed her Vakalatnama on the printed Vakalatnama of adv. Mr. Parsodkar on 4th July, 2012, and accordingly, parties appeared before the Mediator and thereafter again the appeal was heard. Thus, the Review Court concluded that Adv. Ms. Khadekar had appeared in the appeal and Adv. Mr. Parsodkar had not appeared and, therefore, there was no error. To strengthen his argument, Mr. Parsodkar cited a decision of the Supreme Court in the case of Fakruddin Vs. Principal, Consolidation Training Institute and Others, and argued that he had, in fact, signed the Written Notes of Arguments which are on record and it is only at the stage when the appeal was referred for mediation, he had given No Objection to Adv. Ms. Khadekar, because he does not appear before the Mediators. Adv. Mr. Parsodkar argued that, however, right from the beginning, he had appeared for the respondent-plaintiff in that appeal and he had also signed the Written Notes of Arguments. He argued, the fact that the result has gone against the appellant, though his name has been shown as appearing for the appellant, is not relevant. He, therefore, submitted that there was a mistake on the part of learned District Judge-12 in hearing the appeal itself and hence the appeal before the District Court should be re-heard.

Per contra, learned counsel for the respondents supported the impugned judgment and order, so also the order passed in the Review Application. He argued that the fact remains that the Judgment has gone in favour of the respondents and against the appellant on merits in Regular Civil Appeal No. 240 of 2008 and it, therefore, clearly shows that name of Adv. Mr. Parsodkar on record did not make any difference. He further argued that since Lower Appellate Court judgment has been recorded in favour of the respondents, the same cannot be set aside on the ground raised by the appellant.

I have heard learned counsel for the rival parties for quite some time. I frame the following Substantial Questions of Law:-

Answer

Whether the Presiding Officer Mr. A.R. Dhamecha of the Court of District Judge-12, Nagpur, erred in hearing and deciding Regular Civil Appeal No. 240/08 when Adv. Mr. R.S. Parsodkar appeared for the Respondent right since the beginning and Mr. Dhamecha was represented by Mr. R.S. Parsodkar in his personal case?... Yes.

Whether the result of the Appeal against the client of Mr. Parsodkar is relevant?... No.

Upon hearing learned counsel for the rival parties and upon careful perusal of the record, it is clear that Adv. Mr. R.S. Parsodkar had filed his Vakalatnama for the respondent-plaintiff, the appellant herein, way back in the year 2008 itself upon receipt of summons of the appeal before District Judge. It is also not in dispute that Mr. R.S. Parsodkar had filed Written Notes of Arguments in the said appeal under his signature. It is also not in dispute that the appeal was transferred to the Court of Mr. Dhamecha in regular course and then Adv. Mr. R.S. Parsodkar did not appear under a bona fide belief that his cases would not be taken up by the said Judge. The learned Judge of the Lower Appellate Court himself has stated these facts in para 9 of the Judgment passed in Misc. Civil Application No. 155 of 2013 for review, the extract of which reads as under:-

9.........................................It is pertinent to note that I was represented by Adv. Mr. R.S. Parsodkar in one of my personal matter before the Hon'ble High Court. It is a fact Mr. R.S. Parsodkar, Adv., stopped appearing before me and I also stopped taking up his cases, considering that it is not a healthy practice....

It is, therefore, clear that Adv. for Mr. Dhamecha, namely Mr. Parsodkar did enter his appearance in the said appeal which eventually was transferred to the Court of Mr. Dhamecha. It is an admitted position that Mr. R.S. Parsodkar did not appear and argue the said appeal Fact, however, remains that Mr. R.S. Parsodkar, Adv., represented the respondent-plaintiff, present appellant herein and he was also the Advocate for Presiding Officer Mr. Dhamecha in his personal matter in the High Court. The contention raised by learned counsel for the respondent that still the result of the appeal has gone against the appellant, saying that Presiding Officer did not carry anything about his Advocate in his mind and hence there is no prejudice, and, at any rate, since the judgment is in favour of the respondent, does not at all appeal to me. The Supreme Court in the case of Fakruddin Vs. Principal, Consolidation Training Institute & others [cited supra in paras 2 and 4 stated thus:-

Justice should not only be done but seem to be done. This is the basic structure on which confidence and faith in the institution rests. The judiciary from the bottom in the hierarchy to the apex at the top commands respect because of its impartiality and objectivity. When a Judge directs a case to be listed before another Court or Bench, as he knows one or the other party, it is not because any statutory law precludes him from hearing and deciding it but the propriety is practised and observed to exclude even the remotest possibility of any misgiving or doubt about the impartiality of the Judge as even if he is just and fair and his decision is correct yet it may not be satisfying.

4...........But what has compelled us to interfere with the order of the High Court is that it was decided by a Bench of which one of the Judges was a counsel for the respondents before his elevation. It may happen at times that a Judge who had appeared for a party before his elevation may have forgotten about it. An order passed in ignorance of such factual error may not be taken notice of. But where it was specifically pointed out, as claimed in the special leave petition, that the learned Judge was apprised of it and yet he chose to decide the case, is neither justified nor healthy for the institution. The result of the decision is immaterial. Maybe that another Bench hearing the case may have come to the same conclusion....

The controversy raised before me is clearly covered by the dictum laid down by the Apex Court in the aforesaid paragraphs. In view of the above dictum, there is no need for me to dilate further on this question any more. Hence I answer Question No. 1 in affirmative and Question No. 2 in negative. To sum up as a sequel, the following order is inevitable:-

ORDER

[a] The Judgment and Decree dated 24th January, 2013 passed by learned District Judge-12 Mr. A.R. Dhamecha, Nagpur, in Regular Civil Appeal No. 240 of 2008 as well as the Order dated 22nd March, 2013 passed by the said Judge in Misc. Civil Application No. 155 of 2013 are set aside.

[b] Proceedings of Regular Civil Appeal No. 240 of 2008 are remitted to the Court of District Judge, Nagpur, for hearing and fresh disposal in accordance with law.

[c] Parties to appear before the District Court, Nagpur, on 20th August, 2014.

[d] The learned District Judge shall thereafter take up the appeal for hearing and disposal in accordance with law and dispose of the same within a period of six months from the date of first appearance of the parties.

In the circumstances of the case, there shall be no order as to costs.