Bombay HC Appellate Side Rules | 7-Day Notice To Client Not Required When Advocate Files 'No Instructions' Pursis: Supreme Court

The Supreme Court has recently clarified that the requirement of giving a seven-day advance notice to the client before withdrawing a vakalatnama, as mandated under the Bombay High Court Appellate Side Rules, 1960, and the Civil Manual, does not apply when an advocate merely files a pursis stating that he has 'no instructions' from the client.Holding so, the Supreme Court set aside the High Court's interference under Article 227, observing that it cannot reappreciate facts or substitute a plausible, well-reasoned order of the First Appellate Court.“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 of jurisdiction.”, observed a bench of Justices Manoj Misra and Joymalya Bagchi.BackgroundThe appellant–landlord had filed a Civil Suit seeking eviction of tenants under Sections 16(1)(g) and (n) of the Maharashtra Rent Control Act, 1999. After the defendants repeatedly failed to appear, the suit initially proceeded ex parte against them. Their request to recall the ex parte order was later allowed, and they filed written statements.During the proceedings, the defendants' advocate filed a pursis stating that he had “no instructions” from his clients and annexed a notice sent to them. However, he did not seek withdrawal of his vakalatnama. The suit continued, the plaintiff's evidence went unrebutted, and the Trial Court decreed eviction on 4 March 2015.The defendants' appeal under Section 34 of the 1999 Act was dismissed by the District Judge(First Appellate Court), who recorded detailed findings that the defendants had failed to clarify whether they received their advocate's notice and had adopted an evasive and delaying approach.Before the First Appellate Court, they claimed that they had been denied a fair opportunity to defend the suit as no 7-day notice was served on them as per the 1960 Rules to defend themselves.The Appellate Court, however, rejected the tenant's appeal, noting that the “no instructions” pursis did not amount to a formal withdrawal of the Vakalatnama. Since the tenants had not established that they did not receive the notice issued by their lawyer, and that their overall conduct reflected “casualness and inaction”. As a result, the First Appellate court held that they could not be permitted to take advantage of their own negligence, and following this, the tenants invoked the writ/supervisory jurisdiction of the High Court. The High Court overturned the First Appellate Court's and trial court's order, on the premise that since the Respondents-tenants were deprived of a fair opportunity of hearing, they were entitled to a fresh hearing and remanded the matter back to the trial court.The High Court held that the Trial Court failed to follow the mandatory requirements for withdrawal of appearance under Clause 660(4) of the Civil Manual and Rule 8(4) of the Bombay High Court Appellate Side Rules. The High Court noted that the pursis was filed the next day of the advocate sending the letter to the defendants.Aggrieved by the High Court's decision, the landlord approached the Supreme Court. Decision Setting aside the High Court's decision, the court said that the High Court erred in interfering with the well-reasoned order of the subordinate courts, as when a vakalatnama was not withdrawn, then it would be impermissible to invoke the 1960 Rules to mandate the seven-day prior notice to the Respondent tenant in order to afford them an opportunity of hearing.It found that the advocate had not sought withdrawal of his vakalatnama, nor had the Trial Court permitted such withdrawal. Importantly, even after the pursis was filed, the matter remained pending for more than three months, yet the defendants made no effort to appear before the court or engage another lawyer. The defendants also failed to claim that they had not received the letter allegedly sent by their advocate, a fact which the Appellate Court considered crucial. This, coupled with the history of earlier ex parte orders against the defendants, demonstrated a pattern of indifference and delay on their part rather than any procedural unfairness by the court.The Supreme Court held that once the Appellate Court had examined the issue in detail and arrived at a plausible conclusion based on the record, that the defendants could not blame their counsel for their own inaction,there existed no jurisdictional error warranting intervention under Article 227. The High Court,...

Bombay HC Appellate Side Rules | 7-Day Notice To Client Not Required When Advocate Files 'No Instructions' Pursis: Supreme Court

Yash Mittal

Tags