Case Note & Summary
The dispute involved a cooperative society's suit for declaration and possession of a plot against the appellant and the original allottee. The society alleged unauthorized possession by the appellant. The trial court decreed the suit after the appellant's advocate withdrew citing no instructions, and the appellate court confirmed the decree. The appellant challenged this in second appeal, contending that his advocate was not properly discharged under Clause 660(4) of the Civil Manual. The High Court examined whether the mere filing of a no-instructions pursis with notice and acknowledgment, without a specific court order permitting the withdrawal, constituted valid discharge. The court noted that the advocate had sent a letter to the appellant and filed the acknowledgment, but the trial court merely took note of these documents without passing any order regarding its satisfaction that no inconvenience would be caused or that the advocate was permitted to withdraw. The High Court held that such passive acknowledgment was insufficient; the trial court was required to actively satisfy itself and pass an order. Consequently, the proceedings before the trial court were vitiated due to non-compliance with the mandatory procedure. The court also upheld the appellate court's factual finding regarding service of notice based on signature comparison, reiterating that in second appeal, pure findings of fact are final. The appeal was allowed, and the matter was to be remanded for fresh adjudication after proper compliance with the procedural safeguards.
Headnote
A) Civil Procedure - Advocate Withdrawal - Compliance with Clause 660(4) Civil Manual - Civil Manual, Clause 660(4) - When an advocate wishes to withdraw appearance for want of instructions, the procedure under Clause 660(4) requires service of a written notice on the client at least seven days before hearing, filing of a note requesting permission along with the notice and its acknowledgment; however, the court must thereafter satisfy itself that no inconvenience would be caused to the court or the client and expressly permit the withdrawal. Mere placing of the no-instructions pursis and documents on record without a specific court order permitting the withdrawal is not substantial compliance and vitiates the proceedings. The trial court's failure to pass such an order renders the decree unsustainable. (Paras 12-13)
B) Second Appeal - Scope of Interference with Findings of Fact - Section 100, Code of Civil Procedure, 1908 - In second appeal, the High Court cannot reappreciate evidence or disturb pure findings of fact rendered by the lower appellate court, such as the comparison of signatures on documents. The appellate court's finding that the signatures on the postal acknowledgment matched those on the written statement is final and binding. (Para 11)
Issue of Consideration
Whether in absence of the procedure as contemplated by Clause 660(4) of the Civil Manual by the trial Court, whether it could be treated that the counsel for the appellant had been validly discharged?
Law Points
- Compliance with Clause 660(4) Civil Manual
- withdrawal of advocate
- mandatory court permission
- no inconvenience to client
- second appeal limited to questions of law
- findings of fact final
Case Details
2018 LawText (BOM) (04) 139
Second Appeal No. 175 of 2016
K.S. Narwade (for appellant), U.J. Deshpande (for respondent no.2)
Rameshkumar Vyankatswami Poona
Swami Vivekanand Cooperative Housing Society, Shrirampur (Respondent No.1) & Surendra Motiram Ghadge (Respondent No.2)
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Nature of Litigation
Suit for declaration and possession of a plot by a cooperative society against an alleged encroacher and the original allottee.
Remedy Sought
The society sought possession of the suit plot from the appellant and a declaration that he was an encroacher.
Filing Reason
The society alleged that the suit plot was originally allotted to the father of respondent no.2, later inherited by him, but the appellant had unauthorizedly taken possession despite the loan being repaid.
Previous Decisions
Trial Court (Joint Civil Judge, Senior Division, Pusad) decreed the suit on 12-07-2011, declaring the appellant an encroacher and directing possession to the society. The Appellate Court (District Judge-2, Pusad) dismissed the appeal and confirmed the decree on 16-09-2015.
Issues
Whether in absence of the procedure as contemplated by Clause 660(4) of the Civil Manual by the trial Court, whether it could be treated that the counsel for the appellant had been validly discharged?
Submissions/Arguments
Appellant contended that Exhibit 78 (postal acknowledgment) bore no postal stamp, hence service was not proved; the no-instructions pursis was insufficient; non-compliance with Clause 660(4) vitiated the proceedings; and the matter should be remanded for fresh adjudication.
Respondent No.2 submitted that the appellate court had compared signatures and found them identical, proving service; filing of the letter, notice, and acknowledgment along with the pursis constituted sufficient compliance with Clause 660(4).
Ratio Decidendi
For a valid discharge of an advocate under Clause 660(4) of the Civil Manual, the advocate must not only serve notice and file acknowledgment, but the court must record its satisfaction that no inconvenience will be caused to the court or client and must expressly permit the withdrawal. Mere filing of the no-instructions pursis without such judicial order is insufficient and renders the proceedings irregular.
Judgment Excerpts
Whether in absence of the procedure as contemplated by Clause 660(4) of the Civil Manual by the trial Court, whether it could be treated that the counsel for the appellant had been validly discharged?
Being the final Court on facts, the aforesaid pure findings of fact rendered by the appellate Court cannot be interfered with, while exercising second appellate jurisdiction.
There is no order or direction passed by the trial Court regarding its satisfaction that no inconvenience is likely to be caused to the Court or to the appellant while permitting the said Advocate to withdraw his appearance. In fact, there is no
Procedural History
Respondent No.1 society filed Special Civil Suit No.22 of 2005 for declaration and possession. Trial Court decreed the suit on 12-07-2011. Appellant filed Regular Civil Appeal No.70 of 2011 before District Judge-2, Pusad, which was dismissed on 16-09-2015. Appellant then filed Second Appeal No.175 of 2016 before the High Court; notice issued on 28-04-2016 on the substantial question of law, and appeal heard finally on 13-04-2018.
Acts & Sections
- Civil Manual: Clause 660(4)
- Code of Civil Procedure, 1908: Section 100
