Full Judgment Text
2025 INSC 1352
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 13801/2025
@SLP (C) No. 5813/2023
SHRI DIGANT Appellant
VERSUS
M/S. P.D.T. TRADING CO. & ORS. Respondents
O R D E R
1. Leave granted.
2. Heard learned Counsel for the parties and
perused the record.
3. This appeal arises from an order dated
30.1.2023 passed by the High Court of
Judicature at Bombay, Nagpur Bench at Nagpur
in Writ Petition No. 4227/2021 by which the
Writ Petition of the respondent was allowed,
Signature Not Verified
the judgment and order of the District Judge
Digitally signed by
CHETAN ARORA
Date: 2025.11.24
17:49:11 IST
Reason:
dated 16.6.2021 was set aside and the matter
1
was remanded to the Small Causes Court for
deciding the suit expeditiously.
4. A Civil Suit No. 85 of 2014 was instituted
by the appellant against the respondents,
inter alia , for possession under Section
16(1)(g) and (n) of the Maharashtra Rent
Control Act, 1999 (“1999 Act”). In the suit
summons were served upon the defendants. The
defendant Nos 2 and 3 did not appear despite
service of summons therefore, vide order
dated 19.04.2014, the suit was directed to
proceed ex parte against them. Likewise,
defendant No. 1 failed to appear therefore,
vide order dated 24.06.2014, the suit was
ordered to proceed ex parte against him.
Thereafter, defendants applied for recall of
the order directing suit to proceed ex parte
against them. The application was allowed and
they filed their written statements.
5. During the course of the suit proceedings,
the advocate who represented the defendants
applied for deletion of the name of the third
defendent from the array of parties, which
2
was rejected vide order dated 26.11.2014,
and, in between, he submitted pursis
(Exhibit-42) informing the Court that he has
not been provided instructions by his clients
despite letter sent to them. However, the
suit proceeded, evidence of the plaintiff was
recorded and, ultimately, the suit was
decreed on 04.03.2015.
6. Defendants preferred appeal against the
judgment and decree of the Trial Court under
Section 34 of the 1999 Act. In the appeal,
the main ground urged on behalf of the
defendants was that they were not given
adequate opportunity to present their case in
as much as when their counsel had submitted
pursis, claiming no instructions, Court ought
to have served a notice on them to engage
another counsel to represent their case. It
was also contended that the requisite
procedure for withdrawal of Vakalatnama by a
counsel, discharging him of his obligations
to represent his client in a proceeding, was
not followed.
3
7. The aforesaid aspect was dealt with by the
Appellate Court in detail as could be
gathered from paragraphs 13 to 25 of its
judgment, reproduced below:
13] The point No.1 relates to
“
whether learned Trial Court was
correct in proceeding further in
view of pursis below Exh.42 filed
by the advocate for respondent.
Before scrutinizing this aspect, it
is necessary to see what was
actually transpired before the
learned Trial Court. The learned
advocate for appellants/ defendants
forcefully argued that, no
opportunity of hearing was given or
followed by the learned Trial Court
after filing pursis below Exh. 42
dated 26/11/2014. Before
scrutinizing this particular
aspect, I find it necessary to see
and analyse the pursis below
Exh.42. The Exh. 42 reflects that,
it is simply stated by the learned
advocate for defendants that, the
defendants are not attending his
office and therefore, he is not
having any instructions to that
effect. The Exh. 42 is also annexed
with the office copy of notice
dated 20/11/2014 and its postal
4
RPAD receipts.
14] On careful reading of this
particular notice, it is simply an
intimation of prospective action
which can be initiated by the
learned advocate for defendants, if
they did not contact him. The Exh.
42 annexed with the office copy of
notice dated 20/11/2014 no where
reflects that, it shall be treated
as withdrawal of vakalatnama. The
withdrawal of vakalatnama by
advocate is having altogether
different consequences than the
formal pursis in the form of
prospective future action intimated
by the advocate to his client. The
both proceedings invites different
consequences in civil trial. They
can not be treated at par when
defendant himself is at fault.
15] Apart from this aspect, it
is equally worth to note that the
said notice was sent by RPAD by
advocate for defendant. In this
background, the burning and
searching question is required to
be answered by the appellants/
defendants as to
“Whether they had received
notice dated 20/11/2014 by
RPAD sent by advocate
S.S.Sitani” ?.
5
This particular question will
determine the fate of the present
appeal. The appeal memo filed by
the appellants nowhere discloses
any whisper or any response to this
crucial aspect. It was incumbent
upon the appellants to at least
make firm statement about the
notice dated 20/11/2014 issued by
advocate Shri.S. S. Sitani by RPAD.
The appellants/ defendants cannot
built their appeal by not making
any statement in this regard. Even
during the course of final argument
before this Court, neither the
appellant nor their advocates are
in position to answer this
pinpointing question. The
sufficient opportunity was afforded
to the appellant to inquire and to
make positive statement about the
status of the said notice dated
20/11/2014 sent by RPAD. It was
incumbent upon the appellants /
defendants to either outrightly
accept that, they had received this
notice or outrightly deny about the
receipt of such notice. The
appellant cannot remain evasive in
answering this crucial question.
Moreover, the pursis below Exh. 42
annexed with notice is not a
withdrawal of vakalatnama as
contemplated under Advocates Act or
the provisions of Paragraph No. 588
6
of Civil Manual.
16] Under such circumstances,
merely blaming the Trial Court the
Appellants cannot built their
appeal. It is an easy excuse
adopted by the appellants. The
appellants are not ready to make
any statement about the said notice
sent by RPAD to them by their
advocate. Moreover, it is also
pertinent to note that, even after
filing said pursis, the learned
advocate Shri.S.S.Sitani on the
same date participated in making
submissions on application below
Exh. 40. The Exh.40 was preferred
by the defendant No.3 for deleting
his name from the present
proceeding. Though the learned
advocate Shri. S.S. Sitani filed
pursis below Exh. 42, still on the
same day he participated in hearing
below Exh. 40.
17] Moreover, the pursis below
Exh.42 annexed with the notice
dated 26/11/2014 is not valid
notice / intimation to the Court
about the withdrawal of vakalatnama
as contemplated under Advocate’s
Act and Civil Manual. Therefore,
the learned Trial Court rightly
decided to ignore such pursis. I am
very much conscious of the fact
7
that, it may result into firm
approach looking towards the
grounds of appeal preferred by the
defendants. But the appellants
cannot take the benefit of his own
casualness and inaction at all
level, even at the time of filing
this appeal also or during the
course of final hearing when
neither appellants nor their
advocate are ready to submit
anything about the receipt of
notice dated 20/11/2014. They can
not play hide and seek in their
pleadings by remaining silent about
this important aspect.
18] The only ground raised by the
appellants that, the learned Trial
Court did not issue suo-moto notice
after the receipt of information
about Exh.42. The appellants are a
businessman and they are not an
ordinary litigants. Moreover, the
pursis below Exh.42 is nowhere
indicating the withdrawal of
vakalatnma. So, under such
circumstances the casual, lazy and
indifferent litigant cannot blame
the Court for not issuing notice to
him. The casualness and indifferent
attitude of the appellant is very
much crystal clear, when he has
refused to make any statement about
the receipt or non receipt of
8
letter dated 20/11/2014 issued by
advocate Shri. S.S.Sitani. It was
also incumbent upon him to at-least
make an inquiry with his advocate
Shri. S.S.Sitani, once he came to
know about the disposal of civil
suit.
19] Here, at this point the learned
advocate for appellants relied upon
the ruling of Hon'ble Bombay High
Court in the case of Govinda
Bhagoji Kamable and others vs. Sadu
Bapu Kamable and others reported in
2005(1) Mh.L.J. 651. I have
carefully gone through the ratio
laid down in this case law however,
the facts of our case are
altogether different. The notice
dated 20/11/2014 along with pursis
below Exh.42 is not withdrawal of
vakalatnama. The advocate for
defendants had rightly issued
notice to his clients by RPAD. The
notice sent by RPAD is having
general presumption under Section
27 of the General Clauses Act that,
it was duly received to the
addressee. The act of the
appellants about not making any
statement about the said notice is
sent by RPAD clearly distinguishes
the present case from the ratio
laid down in this case law. The act
of the advocate to issue notice by
9
RPAD clearly demonstrates the
positive act on his part.
Similarly, the notice dated
20/11/2014 was only an intimation
about the future course of action.
There is general presumption that,
the notice dated 20/11/2014 was
duly received by the
addressee(appellants). So, under
such circumstances there was no
occasion for the Trial Court to
proceed further by treating the
said no instruction pursis as
withdrawal of vakalatnama as per
procedure contemplated in Civil
Manual. So, on these grounds, the
ratio laid down in this case law
cannot be made applicable to the
facts of our case.
20] The learned advocate for
appellants further relied upon the
ruling of Hon'ble Bombay High Court
Nagpur Bench in the case of
Rameshkumar Vyankatswami Poona vs.
Swami Vivekanand Cooperative
Housing Society, Shrirampur and
another reported in 2018 (6)
Mh.L.J. 227. I have carefully gone
through the ratio laid down in
paragraph No.10, 12, 13, 14, 15 and
16 of the judgment. However, the
facts of our case are altogether
different. The moot question
involved in this appeal is as to
10
whether the appellant can show
their bona fides by making a
statement about receipt or non
receipt of notice dated 20/11/2014
issued by advocate Shri.
S.S.Sitani. The appellant has
conveniently chosen not to make any
statement about the receipt or
nonreceipt of said notice dated
20/11/2014. The appellant is very
well aware that, his statement on
either side will invite further
consequences to prove his
bonafideness in the present appeal.
The appellants cannot conveniently
take evasive stand from making any
statement about the receipt or non
receipt of said notice dated
20/11/2014. So, on this count
alone, the ratio laid down in this
case law are on completely
different parameters than the facts
of our case.
21] The learned advocate for
appellant further relied upon the
ruling of Hon'ble Supreme Court in
the case of Rafiq and another vs.
Munshilal and another reported in
AIR 1981 Supreme Court 1400. I have
gone through the ratio laid down in
this case law. It is observed by
their Lordship that, “dismissal of
appeal for default of appellant's
counsel and therefore, the party
11
should not suffer misdemeanor or
inaction of his counsel”. The
principle laid down in this case
law is universally accepted.
However, the facts of our case are
drastically different. The pursis
below Exh.42 and the notice dated
20/11/2014 sent by RPAD to the
defendants is distinguishing
features. The defendants are not
ready to say anything about the
said notice and its receipt. The
defendant cannot simply blame his
previous counsel to seek the
sympathy of this Court. The
defendant is expected to come with
clean and precise statement about
the notice dated 20/11/2014.
22] It is now time and again
observed that, by making evasive
statements and blaming earlier
advocates parties continue with the
litigation before the same forum or
the appellate forum. Sometimes,
they go on with one step further by
blaming with the Trial Court or
appellate Court to protract the
litigation. But, in present case
the evasiveness on the part of the
appellants / defendants is continue
even at the stage of filing appeal
memo or during the course of final
arguments. The roznama of this case
would demonstrate that, sufficient
12
opportunity was granted from time
and again to the appellants to make
the statement about notice dated
20/11/2014. So, on this count also,
the ratio laid down in this case
law is not applicable to the facts
of our case.
23] The learned advocate for
appellants further relied upon the
ruling of Hon'ble Apex Court in the
case of Goswami Krishna Murarilal
Sharma vs. Dhan Prakash and others
reported in (1981) 4 Supreme Court
Cases 574 and Smt. Lachi Tewari and
others vs. Director of Land Records
and others reported in AIR 1984
Supreme Court 41. I have gone
through the ratios laid down in
both the case laws. However, the
facts narrated as above in our case
clearly makes an exception to the
ratio laid down in these cases.
Therefore, the ratio laid down in
these two case laws are not
applicable to the facts of our
case.
24] In view of above discussion,
the appellants cannot seek the
extraordinary remedy of setting
aside the judgment and decree
merely on the ground that, his
advocate filed no instruction
pursis. Such extraordinary remedy
13
cannot be considered for simple
reason as appellants were
indifferent and evasive about the
notice dated 20/11/2014. It would
have been a different case if the
appellant had made statement that,
the notice dated 20/11/2014 was not
received by him. The said fact
about the receipt or non receipt of
notice dated 20/11/2014 issued by
advocate Shri.S.S.Sitani was within
the exclusive knowledge of
defendant, but he did not explain
this before this Court.
25] The learned advocate for
appellant also did not seek any
information from the appellants in
this regard and continue with
filing evasive appeal on such
grounds. I do not want to say
anything more about this on the
part of learned advocate for
appellants. So, in view of above
discussion, the course adopted by
the learned Trial Court about
pursis below Exh.42 annexed with
notice dated 20/11/2014 is
perfectly legal within the
parameters of Advocates Act,
Practice and Procedure as
contemplated under Civil Manual
issued by Hon'ble Bombay High Court
in this regard. There is no
withdrawal of vakalatnama by
14
advocate Shri. S.S.Sitani by way of
merely filing copy of intimation
notice below Exh.42. Hence, the
point No.1 is answered in
negative. ”
(Emphasis supplied)
8. The Appellate Court thereafter examined
other aspects of the matter and dismissed the
appeal vide order dated 16.06.2021.
9. Aggrieved by dismissal of their appeal,
the respondents filed a petition under
Articles 226/227 of the Constitution of India
before the High Court. It is clear from
paragraph 4 of the judgment of the High Court
that the only point urged before the High
Court was that the Trial Court gave no
opportunity to the defendants to lead
evidence after the counsel representing the
defendants had submitted pursis (Exhibit-42),
claiming no instructions.
10. To address the aforesaid submission, the
High Court extracted Clause 660(4) of the
Civil Manual. Clause 660(4) of the Civil
15
Manual as extracted in the impugned judgment
reads thus:
“(4) When an Advocate who has filed
a Vakalatnama for a party wishes to
withdraw his appearance, he shall
serve a written notice of his
intention to do so on his client at
least seven days in advance of the
case coming up for hearing before
the Court . Leave of the Court to
withdraw appearance may also be
applied for if the client has
instructed the Advocate to that
effect. The Advocate shall file a
note in writing requesting the
Court for permission to withdraw
appearance and shall also file
along with the note the letter of
the client instructing him to
withdraw his appearance or a copy
of the intimation given to the
client as above together with its
written acknowledgment by the
client. The Court, if it is
satisfied that no inconvenience is
likely to be caused to the Court or
the client may permit the Advocate
to withdraw his appearance and
while permitting the Advocate to do
so may also impose such terms and
conditions as it may deem proper
either in public interest or in the
interest of the parties. ”
(Emphasis Supplied)
16
11. Thereafter, the High Court took into
consideration Rule 8(4) of Chapter XXXII of
Schedule VII of the Bombay High Court
Appellate Side Rules, 1960, which has been
extracted in the impugned judgment and is
reproduced below:
“ Rule 8 (4). When an Advocate who
has filed a Vakalatnama for a party
wishes to withdraw his appearance,
he shall serve a written notice of
his intention to do so on his
client at least seven days in
advance of the case coming up for
hearing before the Court. Leave of
the Court to withdraw appearance
may also be applied for if the
client has instructed the Advocate
to that effect. The Advocate shall
file a note in writing requesting
the Court for permission to
withdraw appearance and shall also
file along with the note the letter
of the client instructing him to
withdraw his appearance or a copy
of the intimation given to the
client as above together with its
written acknowledgment by the
client. The Court if it is
satisfied that no inconvenience is
likely to be caused to the Court or
17
the client may permit the Advocate
to withdraw his appearance and
while permitting the Advocate to do
so may also impose such terms and
conditions as it may deem proper
either in public interest or in the
interest of the parties.”
12. After considering the afore-quoted
provisions, the High Court observed:
"… where a counsel purports to
withdraw his vakalatnama what is
required, is a clear seven days
advance notice to his client, prior
to the date on which the matter is
fixed for consideration. The nature
and purpose for this is for
enabling the litigant, to have an
opportunity, either to continue
with the same counsel or change
counsel so that he may not go
unrepresented in the proceedings.”
13. The High Court thereafter, in paragraphs
11 and 12 of its judgment, observed:
“ 11. In the instant case, it is not
in dispute that though the notice
addressed by the counsel to the
petitioner no.1, is dated
20/11/2014 (pg.63), the postal
receipt indicates that it was
18
posted on 25/11/2014 at 14:52
hours, as against which, the no
instructions pursis at Exh.42 has
been filed on 26/11/2014 (pg.62).
There was obviously, a clear-cut
violation of requirement of Clause
660 (4) of the Civil Manual as well
as Rule 8 (4) of the Rules of 1960
framed under Section 34 (1) of the
Advocates Act by the High Court as
there was no service of notice
seven days in advance to the date
fixed. That apart, there is nothing
on record, to indicate that the
notice dated 20/11/2014 posted on
25/11/2014 was ever served upon the
petitioner no.1/tenant as no
material in that regard, has been
placed on record.
12. This would clearly indicate
that the no instructions pursis
(Exh.42/pg.62), has been merely
accepted by the Court, on the face
of it without ensuring that there
was any service of the notice
regarding withdrawal of Vakalatnama
within the framework of Rule 8 (4)
of the Rules of 1960 framed under
Section 34 (1) of the Advocates Act
by the High Court or Clause 660 (4)
of the Civil Manual .”
19
14. Based on those observations, the High
Court took the view that the defendant (i.e.
the petitioner before the High Court) was
deprived of opportunity to present its case
and, therefore, it is appropriate to set
aside the order passed by the Trial Court as
well as the Appellate Court and remand the
matter to the Trial Court for decision
afresh.
15. Aggrieved by the order of the High Court,
this appeal has been filed.
16. The submission of the learned counsel for
the appellant is that between the date when
the pursis (Exhibit-42) was submitted and the
date by which the Trial Court decided the
matter, the case had remained pending for a
period exceeding three months yet, in
between, no effort was made on part of the
defendant to contest the proceedings. Besides
that, the Court had not permitted withdrawal
of Vakalatnama by the counsel representing
the defendant and the pursis did not pray for
20
withdrawal of the Vakalatnama . Even
otherwise, the procedure prescribed for
withdrawal of a Vakalatnama is to put the
litigant on notice to enable him to engage
another counsel before the next date of
hearing. The object of the procedure is not
to let parties seek adjournment and defer
court proceedings. Here, the counsel who
represented the defendant had not withdrawn
the Vakalatnama but had only claimed no
instructions and along with the pursis had
annexed letter sent to his client. As per the
appellate court finding there was no claim of
the defendants that the letter sent by their
counsel was not served upon them. In such
circumstances, if no instructions are
provided by a litigant to his advocate, it is
the fault of the litigant not of the
advocate. Moreover, there was sufficient
material on record to indicate that fault lay
with the party and not the counsel. Further,
there is nothing on record that any
21
proceedings were initiated against the
advocate for his misconduct.
17. In those circumstances, it is submitted,
a well-considered decision of the Appellate
Court wherein the aforesaid issue was
addressed in detail ought not to have been
interfered with in exercise of supervisory
jurisdiction under Article 227 of the
Constitution of India where the Court,
ordinarily, can correct jurisdictional errors
only. Based on the aforesaid submissions, it
was prayed on behalf of the appellants that
the order passed by the High Court be set
aside and the petition preferred before the
High Court i.e. Writ Petition No. 4227 of
2021 be dismissed.
18. Per contra , learned counsel for the
respondent has submitted that the High Court
has taken into consideration the relevant
Rules governing withdrawal of power and
thereafter concluded that because of lawyer's
conduct the defendants were deprived of
22
opportunity to lead evidence. Therefore, the
order of remand calls for no interference.
19. We have considered the rival submissions
and have perused the record carefully.
20. The only issue that fell for
consideration of the High Court was whether,
on account of defendants’ lawyer’s pursis,
claiming ‘no instructions’, the trial court
ought to have proceeded to decide the suit
without ascertaining whether the defendants
were duly informed about lawyer’s withdrawal
from the case.
21. Before we address the aforesaid issue, it
would be apposite to consider the scope of
High Court’s power under Articles 226/227 of
the Constitution of India while entertaining
a challenge to a civil court’s order passed
in a suit or proceeding.
22. The scope of High Court’s jurisdiction
under Articles 226/227 fell for consideration
before a three-Judge Bench of this Court in
23
1
Radhey Shyam & another v. Chhabi Nath & Ors .
This Court held that judicial orders of civil
courts are not amenable to a writ of
certiorari under Article 226, though they may
be questioned in the supervisory jurisdiction
of the High Court under Article 227 of the
Constitution. The power under Article 227 is
intended to be used sparingly and only in
appropriate cases for the purpose of keeping
the subordinate courts and tribunals within
the bounds of their authority and not for
correcting mere errors. The power may be
exercised in cases occasioning grave
injustice or failure of justice such as when
(i) the court or tribunal has assumed a
jurisdiction which it does not have, (ii) has
failed to exercise a jurisdiction which it
does have, such failure occasioning a failure
of justice, and (iii) the jurisdiction though
available is being exercised in a manner
which tantamounts to overstepping the limits
2
of jurisdiction .
1
1 (2015) 5 SCC 423
2
2 Surya Dev Rai v. Ram Chander Rai & Ors. (2003) 6 SCC 675.
24
23. In the case on hand, the appellate court
had considered in detail the issue as to
whether the trial court was justified in
proceeding with the case, without further
notice to the defendants, after submission of
pursis (Exh.42) by defendants’ counsel,
claiming no instructions. After a threadbare
analysis and taking into consideration the
surrounding circumstances, the appellate
court held that the trial court committed no
wrong in proceeding with the matter. The
appellate court noticed that the advocate
representing the defendants had claimed no
instructions but not sought withdrawal of his
Vakalatnama and the matter thereafter
remained pending for over three months till
it was decided in March 2015. In between no
effort was made by the defendants to engage
another lawyer. Moreover, the defendants did
not come up with a case that their lawyer’s
notice was not served on them therefore, they
could not engage another counsel. Besides
that, the record also indicated that the
25
intention of the defendants was to delay the
proceedings because earlier also the suit had
proceeded ex parte against them though,
later, those orders were recalled. Therefore,
in our view, once the appellate court took
into consideration all relevant aspects
including the fact that pursis (Exh.42) did
not seek withdrawal of the Vakalatnama, and
withdrawal was not even permitted, there was
no such jurisdictional error which warranted
exercise of powers under Article 227 of the
Constitution of India. The High Court without
any justification went on to consider the
procedure prescribed for withdrawal of
Vakalatnama when neither withdrawal of
Vakalatnama was permitted by the Trial Court
nor the pursis prayed for its withdrawal. In
such circumstances, the entire exercise of
the High Court was misconceived. More so,
when the view taken by the appellate court
that defendant cannot take advantage of his
own wrong was a plausible view based on
materials available on record. Hence, in our
26
view, appellate court’s order was not
amenable to interference in exercise of
jurisdiction under Articles 226/227 of the
Constitution of India. The High Court clearly
exceeded its jurisdiction under Article 227
of the Constitution in interfering with a
well reasoned order of the appellate court.
24. As we notice that before the High Court
except the aforesaid point no other point was
pressed, and no other point arises for our
consideration in as much as the evidence led
by the plaintiff went unrebutted, we deem it
appropriate to allow this appeal and restore
the order of the trial court as affirmed by
the appellate court.
25. The appeal is, accordingly, allowed. The
order passed by the High Court dated
30.01.2023 is set aside. Writ Petition No.
4227 of 2021 shall stand dismissed. Parties
to bear their own costs.
27
26. Pending application(s), if any, shall
stand disposed of.
………………………………………………………………….J
[MANOJ MISRA]
………………………………………………………………….J
[JOYMALYA BAGCHI]
New Delhi;
November 18, 2025
28
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 13801/2025
@SLP (C) No. 5813/2023
SHRI DIGANT Appellant
VERSUS
M/S. P.D.T. TRADING CO. & ORS. Respondents
O R D E R
1. Leave granted.
2. Heard learned Counsel for the parties and
perused the record.
3. This appeal arises from an order dated
30.1.2023 passed by the High Court of
Judicature at Bombay, Nagpur Bench at Nagpur
in Writ Petition No. 4227/2021 by which the
Writ Petition of the respondent was allowed,
Signature Not Verified
the judgment and order of the District Judge
Digitally signed by
CHETAN ARORA
Date: 2025.11.24
17:49:11 IST
Reason:
dated 16.6.2021 was set aside and the matter
1
was remanded to the Small Causes Court for
deciding the suit expeditiously.
4. A Civil Suit No. 85 of 2014 was instituted
by the appellant against the respondents,
inter alia , for possession under Section
16(1)(g) and (n) of the Maharashtra Rent
Control Act, 1999 (“1999 Act”). In the suit
summons were served upon the defendants. The
defendant Nos 2 and 3 did not appear despite
service of summons therefore, vide order
dated 19.04.2014, the suit was directed to
proceed ex parte against them. Likewise,
defendant No. 1 failed to appear therefore,
vide order dated 24.06.2014, the suit was
ordered to proceed ex parte against him.
Thereafter, defendants applied for recall of
the order directing suit to proceed ex parte
against them. The application was allowed and
they filed their written statements.
5. During the course of the suit proceedings,
the advocate who represented the defendants
applied for deletion of the name of the third
defendent from the array of parties, which
2
was rejected vide order dated 26.11.2014,
and, in between, he submitted pursis
(Exhibit-42) informing the Court that he has
not been provided instructions by his clients
despite letter sent to them. However, the
suit proceeded, evidence of the plaintiff was
recorded and, ultimately, the suit was
decreed on 04.03.2015.
6. Defendants preferred appeal against the
judgment and decree of the Trial Court under
Section 34 of the 1999 Act. In the appeal,
the main ground urged on behalf of the
defendants was that they were not given
adequate opportunity to present their case in
as much as when their counsel had submitted
pursis, claiming no instructions, Court ought
to have served a notice on them to engage
another counsel to represent their case. It
was also contended that the requisite
procedure for withdrawal of Vakalatnama by a
counsel, discharging him of his obligations
to represent his client in a proceeding, was
not followed.
3
7. The aforesaid aspect was dealt with by the
Appellate Court in detail as could be
gathered from paragraphs 13 to 25 of its
judgment, reproduced below:
13] The point No.1 relates to
“
whether learned Trial Court was
correct in proceeding further in
view of pursis below Exh.42 filed
by the advocate for respondent.
Before scrutinizing this aspect, it
is necessary to see what was
actually transpired before the
learned Trial Court. The learned
advocate for appellants/ defendants
forcefully argued that, no
opportunity of hearing was given or
followed by the learned Trial Court
after filing pursis below Exh. 42
dated 26/11/2014. Before
scrutinizing this particular
aspect, I find it necessary to see
and analyse the pursis below
Exh.42. The Exh. 42 reflects that,
it is simply stated by the learned
advocate for defendants that, the
defendants are not attending his
office and therefore, he is not
having any instructions to that
effect. The Exh. 42 is also annexed
with the office copy of notice
dated 20/11/2014 and its postal
4
RPAD receipts.
14] On careful reading of this
particular notice, it is simply an
intimation of prospective action
which can be initiated by the
learned advocate for defendants, if
they did not contact him. The Exh.
42 annexed with the office copy of
notice dated 20/11/2014 no where
reflects that, it shall be treated
as withdrawal of vakalatnama. The
withdrawal of vakalatnama by
advocate is having altogether
different consequences than the
formal pursis in the form of
prospective future action intimated
by the advocate to his client. The
both proceedings invites different
consequences in civil trial. They
can not be treated at par when
defendant himself is at fault.
15] Apart from this aspect, it
is equally worth to note that the
said notice was sent by RPAD by
advocate for defendant. In this
background, the burning and
searching question is required to
be answered by the appellants/
defendants as to
“Whether they had received
notice dated 20/11/2014 by
RPAD sent by advocate
S.S.Sitani” ?.
5
This particular question will
determine the fate of the present
appeal. The appeal memo filed by
the appellants nowhere discloses
any whisper or any response to this
crucial aspect. It was incumbent
upon the appellants to at least
make firm statement about the
notice dated 20/11/2014 issued by
advocate Shri.S. S. Sitani by RPAD.
The appellants/ defendants cannot
built their appeal by not making
any statement in this regard. Even
during the course of final argument
before this Court, neither the
appellant nor their advocates are
in position to answer this
pinpointing question. The
sufficient opportunity was afforded
to the appellant to inquire and to
make positive statement about the
status of the said notice dated
20/11/2014 sent by RPAD. It was
incumbent upon the appellants /
defendants to either outrightly
accept that, they had received this
notice or outrightly deny about the
receipt of such notice. The
appellant cannot remain evasive in
answering this crucial question.
Moreover, the pursis below Exh. 42
annexed with notice is not a
withdrawal of vakalatnama as
contemplated under Advocates Act or
the provisions of Paragraph No. 588
6
of Civil Manual.
16] Under such circumstances,
merely blaming the Trial Court the
Appellants cannot built their
appeal. It is an easy excuse
adopted by the appellants. The
appellants are not ready to make
any statement about the said notice
sent by RPAD to them by their
advocate. Moreover, it is also
pertinent to note that, even after
filing said pursis, the learned
advocate Shri.S.S.Sitani on the
same date participated in making
submissions on application below
Exh. 40. The Exh.40 was preferred
by the defendant No.3 for deleting
his name from the present
proceeding. Though the learned
advocate Shri. S.S. Sitani filed
pursis below Exh. 42, still on the
same day he participated in hearing
below Exh. 40.
17] Moreover, the pursis below
Exh.42 annexed with the notice
dated 26/11/2014 is not valid
notice / intimation to the Court
about the withdrawal of vakalatnama
as contemplated under Advocate’s
Act and Civil Manual. Therefore,
the learned Trial Court rightly
decided to ignore such pursis. I am
very much conscious of the fact
7
that, it may result into firm
approach looking towards the
grounds of appeal preferred by the
defendants. But the appellants
cannot take the benefit of his own
casualness and inaction at all
level, even at the time of filing
this appeal also or during the
course of final hearing when
neither appellants nor their
advocate are ready to submit
anything about the receipt of
notice dated 20/11/2014. They can
not play hide and seek in their
pleadings by remaining silent about
this important aspect.
18] The only ground raised by the
appellants that, the learned Trial
Court did not issue suo-moto notice
after the receipt of information
about Exh.42. The appellants are a
businessman and they are not an
ordinary litigants. Moreover, the
pursis below Exh.42 is nowhere
indicating the withdrawal of
vakalatnma. So, under such
circumstances the casual, lazy and
indifferent litigant cannot blame
the Court for not issuing notice to
him. The casualness and indifferent
attitude of the appellant is very
much crystal clear, when he has
refused to make any statement about
the receipt or non receipt of
8
letter dated 20/11/2014 issued by
advocate Shri. S.S.Sitani. It was
also incumbent upon him to at-least
make an inquiry with his advocate
Shri. S.S.Sitani, once he came to
know about the disposal of civil
suit.
19] Here, at this point the learned
advocate for appellants relied upon
the ruling of Hon'ble Bombay High
Court in the case of Govinda
Bhagoji Kamable and others vs. Sadu
Bapu Kamable and others reported in
2005(1) Mh.L.J. 651. I have
carefully gone through the ratio
laid down in this case law however,
the facts of our case are
altogether different. The notice
dated 20/11/2014 along with pursis
below Exh.42 is not withdrawal of
vakalatnama. The advocate for
defendants had rightly issued
notice to his clients by RPAD. The
notice sent by RPAD is having
general presumption under Section
27 of the General Clauses Act that,
it was duly received to the
addressee. The act of the
appellants about not making any
statement about the said notice is
sent by RPAD clearly distinguishes
the present case from the ratio
laid down in this case law. The act
of the advocate to issue notice by
9
RPAD clearly demonstrates the
positive act on his part.
Similarly, the notice dated
20/11/2014 was only an intimation
about the future course of action.
There is general presumption that,
the notice dated 20/11/2014 was
duly received by the
addressee(appellants). So, under
such circumstances there was no
occasion for the Trial Court to
proceed further by treating the
said no instruction pursis as
withdrawal of vakalatnama as per
procedure contemplated in Civil
Manual. So, on these grounds, the
ratio laid down in this case law
cannot be made applicable to the
facts of our case.
20] The learned advocate for
appellants further relied upon the
ruling of Hon'ble Bombay High Court
Nagpur Bench in the case of
Rameshkumar Vyankatswami Poona vs.
Swami Vivekanand Cooperative
Housing Society, Shrirampur and
another reported in 2018 (6)
Mh.L.J. 227. I have carefully gone
through the ratio laid down in
paragraph No.10, 12, 13, 14, 15 and
16 of the judgment. However, the
facts of our case are altogether
different. The moot question
involved in this appeal is as to
10
whether the appellant can show
their bona fides by making a
statement about receipt or non
receipt of notice dated 20/11/2014
issued by advocate Shri.
S.S.Sitani. The appellant has
conveniently chosen not to make any
statement about the receipt or
nonreceipt of said notice dated
20/11/2014. The appellant is very
well aware that, his statement on
either side will invite further
consequences to prove his
bonafideness in the present appeal.
The appellants cannot conveniently
take evasive stand from making any
statement about the receipt or non
receipt of said notice dated
20/11/2014. So, on this count
alone, the ratio laid down in this
case law are on completely
different parameters than the facts
of our case.
21] The learned advocate for
appellant further relied upon the
ruling of Hon'ble Supreme Court in
the case of Rafiq and another vs.
Munshilal and another reported in
AIR 1981 Supreme Court 1400. I have
gone through the ratio laid down in
this case law. It is observed by
their Lordship that, “dismissal of
appeal for default of appellant's
counsel and therefore, the party
11
should not suffer misdemeanor or
inaction of his counsel”. The
principle laid down in this case
law is universally accepted.
However, the facts of our case are
drastically different. The pursis
below Exh.42 and the notice dated
20/11/2014 sent by RPAD to the
defendants is distinguishing
features. The defendants are not
ready to say anything about the
said notice and its receipt. The
defendant cannot simply blame his
previous counsel to seek the
sympathy of this Court. The
defendant is expected to come with
clean and precise statement about
the notice dated 20/11/2014.
22] It is now time and again
observed that, by making evasive
statements and blaming earlier
advocates parties continue with the
litigation before the same forum or
the appellate forum. Sometimes,
they go on with one step further by
blaming with the Trial Court or
appellate Court to protract the
litigation. But, in present case
the evasiveness on the part of the
appellants / defendants is continue
even at the stage of filing appeal
memo or during the course of final
arguments. The roznama of this case
would demonstrate that, sufficient
12
opportunity was granted from time
and again to the appellants to make
the statement about notice dated
20/11/2014. So, on this count also,
the ratio laid down in this case
law is not applicable to the facts
of our case.
23] The learned advocate for
appellants further relied upon the
ruling of Hon'ble Apex Court in the
case of Goswami Krishna Murarilal
Sharma vs. Dhan Prakash and others
reported in (1981) 4 Supreme Court
Cases 574 and Smt. Lachi Tewari and
others vs. Director of Land Records
and others reported in AIR 1984
Supreme Court 41. I have gone
through the ratios laid down in
both the case laws. However, the
facts narrated as above in our case
clearly makes an exception to the
ratio laid down in these cases.
Therefore, the ratio laid down in
these two case laws are not
applicable to the facts of our
case.
24] In view of above discussion,
the appellants cannot seek the
extraordinary remedy of setting
aside the judgment and decree
merely on the ground that, his
advocate filed no instruction
pursis. Such extraordinary remedy
13
cannot be considered for simple
reason as appellants were
indifferent and evasive about the
notice dated 20/11/2014. It would
have been a different case if the
appellant had made statement that,
the notice dated 20/11/2014 was not
received by him. The said fact
about the receipt or non receipt of
notice dated 20/11/2014 issued by
advocate Shri.S.S.Sitani was within
the exclusive knowledge of
defendant, but he did not explain
this before this Court.
25] The learned advocate for
appellant also did not seek any
information from the appellants in
this regard and continue with
filing evasive appeal on such
grounds. I do not want to say
anything more about this on the
part of learned advocate for
appellants. So, in view of above
discussion, the course adopted by
the learned Trial Court about
pursis below Exh.42 annexed with
notice dated 20/11/2014 is
perfectly legal within the
parameters of Advocates Act,
Practice and Procedure as
contemplated under Civil Manual
issued by Hon'ble Bombay High Court
in this regard. There is no
withdrawal of vakalatnama by
14
advocate Shri. S.S.Sitani by way of
merely filing copy of intimation
notice below Exh.42. Hence, the
point No.1 is answered in
negative. ”
(Emphasis supplied)
8. The Appellate Court thereafter examined
other aspects of the matter and dismissed the
appeal vide order dated 16.06.2021.
9. Aggrieved by dismissal of their appeal,
the respondents filed a petition under
Articles 226/227 of the Constitution of India
before the High Court. It is clear from
paragraph 4 of the judgment of the High Court
that the only point urged before the High
Court was that the Trial Court gave no
opportunity to the defendants to lead
evidence after the counsel representing the
defendants had submitted pursis (Exhibit-42),
claiming no instructions.
10. To address the aforesaid submission, the
High Court extracted Clause 660(4) of the
Civil Manual. Clause 660(4) of the Civil
15
Manual as extracted in the impugned judgment
reads thus:
“(4) When an Advocate who has filed
a Vakalatnama for a party wishes to
withdraw his appearance, he shall
serve a written notice of his
intention to do so on his client at
least seven days in advance of the
case coming up for hearing before
the Court . Leave of the Court to
withdraw appearance may also be
applied for if the client has
instructed the Advocate to that
effect. The Advocate shall file a
note in writing requesting the
Court for permission to withdraw
appearance and shall also file
along with the note the letter of
the client instructing him to
withdraw his appearance or a copy
of the intimation given to the
client as above together with its
written acknowledgment by the
client. The Court, if it is
satisfied that no inconvenience is
likely to be caused to the Court or
the client may permit the Advocate
to withdraw his appearance and
while permitting the Advocate to do
so may also impose such terms and
conditions as it may deem proper
either in public interest or in the
interest of the parties. ”
(Emphasis Supplied)
16
11. Thereafter, the High Court took into
consideration Rule 8(4) of Chapter XXXII of
Schedule VII of the Bombay High Court
Appellate Side Rules, 1960, which has been
extracted in the impugned judgment and is
reproduced below:
“ Rule 8 (4). When an Advocate who
has filed a Vakalatnama for a party
wishes to withdraw his appearance,
he shall serve a written notice of
his intention to do so on his
client at least seven days in
advance of the case coming up for
hearing before the Court. Leave of
the Court to withdraw appearance
may also be applied for if the
client has instructed the Advocate
to that effect. The Advocate shall
file a note in writing requesting
the Court for permission to
withdraw appearance and shall also
file along with the note the letter
of the client instructing him to
withdraw his appearance or a copy
of the intimation given to the
client as above together with its
written acknowledgment by the
client. The Court if it is
satisfied that no inconvenience is
likely to be caused to the Court or
17
the client may permit the Advocate
to withdraw his appearance and
while permitting the Advocate to do
so may also impose such terms and
conditions as it may deem proper
either in public interest or in the
interest of the parties.”
12. After considering the afore-quoted
provisions, the High Court observed:
"… where a counsel purports to
withdraw his vakalatnama what is
required, is a clear seven days
advance notice to his client, prior
to the date on which the matter is
fixed for consideration. The nature
and purpose for this is for
enabling the litigant, to have an
opportunity, either to continue
with the same counsel or change
counsel so that he may not go
unrepresented in the proceedings.”
13. The High Court thereafter, in paragraphs
11 and 12 of its judgment, observed:
“ 11. In the instant case, it is not
in dispute that though the notice
addressed by the counsel to the
petitioner no.1, is dated
20/11/2014 (pg.63), the postal
receipt indicates that it was
18
posted on 25/11/2014 at 14:52
hours, as against which, the no
instructions pursis at Exh.42 has
been filed on 26/11/2014 (pg.62).
There was obviously, a clear-cut
violation of requirement of Clause
660 (4) of the Civil Manual as well
as Rule 8 (4) of the Rules of 1960
framed under Section 34 (1) of the
Advocates Act by the High Court as
there was no service of notice
seven days in advance to the date
fixed. That apart, there is nothing
on record, to indicate that the
notice dated 20/11/2014 posted on
25/11/2014 was ever served upon the
petitioner no.1/tenant as no
material in that regard, has been
placed on record.
12. This would clearly indicate
that the no instructions pursis
(Exh.42/pg.62), has been merely
accepted by the Court, on the face
of it without ensuring that there
was any service of the notice
regarding withdrawal of Vakalatnama
within the framework of Rule 8 (4)
of the Rules of 1960 framed under
Section 34 (1) of the Advocates Act
by the High Court or Clause 660 (4)
of the Civil Manual .”
19
14. Based on those observations, the High
Court took the view that the defendant (i.e.
the petitioner before the High Court) was
deprived of opportunity to present its case
and, therefore, it is appropriate to set
aside the order passed by the Trial Court as
well as the Appellate Court and remand the
matter to the Trial Court for decision
afresh.
15. Aggrieved by the order of the High Court,
this appeal has been filed.
16. The submission of the learned counsel for
the appellant is that between the date when
the pursis (Exhibit-42) was submitted and the
date by which the Trial Court decided the
matter, the case had remained pending for a
period exceeding three months yet, in
between, no effort was made on part of the
defendant to contest the proceedings. Besides
that, the Court had not permitted withdrawal
of Vakalatnama by the counsel representing
the defendant and the pursis did not pray for
20
withdrawal of the Vakalatnama . Even
otherwise, the procedure prescribed for
withdrawal of a Vakalatnama is to put the
litigant on notice to enable him to engage
another counsel before the next date of
hearing. The object of the procedure is not
to let parties seek adjournment and defer
court proceedings. Here, the counsel who
represented the defendant had not withdrawn
the Vakalatnama but had only claimed no
instructions and along with the pursis had
annexed letter sent to his client. As per the
appellate court finding there was no claim of
the defendants that the letter sent by their
counsel was not served upon them. In such
circumstances, if no instructions are
provided by a litigant to his advocate, it is
the fault of the litigant not of the
advocate. Moreover, there was sufficient
material on record to indicate that fault lay
with the party and not the counsel. Further,
there is nothing on record that any
21
proceedings were initiated against the
advocate for his misconduct.
17. In those circumstances, it is submitted,
a well-considered decision of the Appellate
Court wherein the aforesaid issue was
addressed in detail ought not to have been
interfered with in exercise of supervisory
jurisdiction under Article 227 of the
Constitution of India where the Court,
ordinarily, can correct jurisdictional errors
only. Based on the aforesaid submissions, it
was prayed on behalf of the appellants that
the order passed by the High Court be set
aside and the petition preferred before the
High Court i.e. Writ Petition No. 4227 of
2021 be dismissed.
18. Per contra , learned counsel for the
respondent has submitted that the High Court
has taken into consideration the relevant
Rules governing withdrawal of power and
thereafter concluded that because of lawyer's
conduct the defendants were deprived of
22
opportunity to lead evidence. Therefore, the
order of remand calls for no interference.
19. We have considered the rival submissions
and have perused the record carefully.
20. The only issue that fell for
consideration of the High Court was whether,
on account of defendants’ lawyer’s pursis,
claiming ‘no instructions’, the trial court
ought to have proceeded to decide the suit
without ascertaining whether the defendants
were duly informed about lawyer’s withdrawal
from the case.
21. Before we address the aforesaid issue, it
would be apposite to consider the scope of
High Court’s power under Articles 226/227 of
the Constitution of India while entertaining
a challenge to a civil court’s order passed
in a suit or proceeding.
22. The scope of High Court’s jurisdiction
under Articles 226/227 fell for consideration
before a three-Judge Bench of this Court in
23
1
Radhey Shyam & another v. Chhabi Nath & Ors .
This Court held that judicial orders of civil
courts are not amenable to a writ of
certiorari under Article 226, though they may
be questioned in the supervisory jurisdiction
of the High Court under Article 227 of the
Constitution. The power under Article 227 is
intended to be used sparingly and only in
appropriate cases for the purpose of keeping
the subordinate courts and tribunals within
the bounds of their authority and not for
correcting mere errors. The power may be
exercised in cases occasioning grave
injustice or failure of justice such as when
(i) the court or tribunal has assumed a
jurisdiction which it does not have, (ii) has
failed to exercise a jurisdiction which it
does have, such failure occasioning a failure
of justice, and (iii) the jurisdiction though
available is being exercised in a manner
which tantamounts to overstepping the limits
2
of jurisdiction .
1
1 (2015) 5 SCC 423
2
2 Surya Dev Rai v. Ram Chander Rai & Ors. (2003) 6 SCC 675.
24
23. In the case on hand, the appellate court
had considered in detail the issue as to
whether the trial court was justified in
proceeding with the case, without further
notice to the defendants, after submission of
pursis (Exh.42) by defendants’ counsel,
claiming no instructions. After a threadbare
analysis and taking into consideration the
surrounding circumstances, the appellate
court held that the trial court committed no
wrong in proceeding with the matter. The
appellate court noticed that the advocate
representing the defendants had claimed no
instructions but not sought withdrawal of his
Vakalatnama and the matter thereafter
remained pending for over three months till
it was decided in March 2015. In between no
effort was made by the defendants to engage
another lawyer. Moreover, the defendants did
not come up with a case that their lawyer’s
notice was not served on them therefore, they
could not engage another counsel. Besides
that, the record also indicated that the
25
intention of the defendants was to delay the
proceedings because earlier also the suit had
proceeded ex parte against them though,
later, those orders were recalled. Therefore,
in our view, once the appellate court took
into consideration all relevant aspects
including the fact that pursis (Exh.42) did
not seek withdrawal of the Vakalatnama, and
withdrawal was not even permitted, there was
no such jurisdictional error which warranted
exercise of powers under Article 227 of the
Constitution of India. The High Court without
any justification went on to consider the
procedure prescribed for withdrawal of
Vakalatnama when neither withdrawal of
Vakalatnama was permitted by the Trial Court
nor the pursis prayed for its withdrawal. In
such circumstances, the entire exercise of
the High Court was misconceived. More so,
when the view taken by the appellate court
that defendant cannot take advantage of his
own wrong was a plausible view based on
materials available on record. Hence, in our
26
view, appellate court’s order was not
amenable to interference in exercise of
jurisdiction under Articles 226/227 of the
Constitution of India. The High Court clearly
exceeded its jurisdiction under Article 227
of the Constitution in interfering with a
well reasoned order of the appellate court.
24. As we notice that before the High Court
except the aforesaid point no other point was
pressed, and no other point arises for our
consideration in as much as the evidence led
by the plaintiff went unrebutted, we deem it
appropriate to allow this appeal and restore
the order of the trial court as affirmed by
the appellate court.
25. The appeal is, accordingly, allowed. The
order passed by the High Court dated
30.01.2023 is set aside. Writ Petition No.
4227 of 2021 shall stand dismissed. Parties
to bear their own costs.
27
26. Pending application(s), if any, shall
stand disposed of.
………………………………………………………………….J
[MANOJ MISRA]
………………………………………………………………….J
[JOYMALYA BAGCHI]
New Delhi;
November 18, 2025
28