1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. REVIEW PETITION NO.3 OF 2009 IN NOTION OF MOTION NO.558 OF 2006 IN SUIT NO.2038 OF 1985 Jasbir Singh Vasan & Ors. ...Petitioners Vs. The Municipal Corporation of Greater Bombay & Ors. ...Respondents Mr. Sajan Oommen Advocate for Petitioners Mr. Alok Bagla i/b. M/s. Bagla Dandekar & Co., for Respondent No.3 Mr. R.Y. Sirsikar Advocate for BMC CORAM : SMT.ROSHAN DALVI, J. Dated : 30TH SEPTEMBER, 2009 P.C. : 1.This Review Petition is filed to review my order dated 4th December 2008 passed in the above Notice of Motion. That Notice of Motion was taken out for setting aside the dismissal of the suit under the provisions of Order 9 Rule 9 of the C.P.C. The suit had stood dismissed on 5th February, 2004. Thereafter, 2 other Notices of Motion were taken out for setting aside the order of dismissal. Those Notices of Motion were withdrawn with liberty to file further Notices of 2 Motion. Hence the above Notice of Motion came to be filed. 2.The Notice of Motion came to be disposed off without the suit being restored to file because the NOC of the earliest Advocate was not obtained by the Plaintiffs/Petitioners who were represented by the later Advocates and because all the Plaintiffs/Petitioners had not given the then Advocate authority to appear. 3.The suit has been filed by 24 flat purchasers in a building which has 31 flats. The Co-operative Society was not formed. Hence, the flat purchasers have themselves sued. The suit came to be dismissed because from time to time the Advocates of the Plaintiffs/Petitioners had changed. The first Advocate was one Mr. Z.A.Mehta. He had written a letter to the Honorary Secretary of the Society (it was by then formed)on 13th March 2002, that he had received his full fees and that he was going abroad because of advanced age and ill-health and had requested the Society to take away the papers. Thereafter the second Advocate Mr. Sharad K. Bhosale had sought to file his Vakalatnama. The NOC of the first Advocate was sought to be shown to the Prothonotary & Senior Master by annexing the xerox copy of the letter of the first 3 Advocate Mr. Z.K. Mehta. The second Advocate sought to file his Vakalatnama on 8th April 2002 signed by the Chairman and the Secretary of the Society (which was by then formed). The Society was not the Plaintiffs/Petitioners. The Vakalatnama was incorrectly filed. It was not accepted and kept in objection. The Plaintiffs/Petitioners were given opportunity to get the error corrected. The error was not corrected. The Plaintiffs/Petitioners defaulted in appearance. After granting 2 opportunities the suit came to be dismissed for default. 4.Thereafter, a 3rd Advocate one Mr. B.N.Yadav sought to appear. That was at the time of the application for restoration of the suit which was by then dismissed. 5.At the time of the hearing of the Notice of Motion No. 558/2006 which was the 3rd Notice of Motion for restoration a 4th Advocate sought to appear that was M/s. Leega Apex. 6.In my order dated 4th December 2008 I have observed that the then Advocate s Firm had sought to file the Vakalatnama upon the NOC given by the earlier Advocate Mr. Sharad Bhosale. Since the earlier Advocate did not have authority to appear since he had appeared without taking the NOC of the yet earlier Advocate who 4 was not discharged and had not obtained the proper Vakalatnama he had no authority to appear. 7.My order dated 4th December 2008 came to be passed without seeing the original NOC of the initial Advocate Mr.Z.K.Mehta. I have been shown the NOC of Mr. Z.K.Mehta now. That is given in a letter on the letterhead of Mr. Z.K.Mehta signed by Mr. Mehta and is produced by one of the Plaintiffs/Petitioners. The letter has been addressed to the Secretary of the Society. Hence it has accordingly come from proper custody. The letter, as aforesaid, shows that the Advocate has received his fees and that he could not attend because he was proceeding to the U.S due to his advanced age and ill-health. It would have to be seen whether that letter would show the proper NOC of the Advocate. The Advocate on behalf of the Defendant (Respondent No.3) in this Review Petition has fairly conceded that NOC can be given by Advocate in any manner. It is usually given by way of an endorsement on the Vakalatnama itself. If the Advocate is old, ill and proceeds abroad, his letter given to his client setting out that he has received his full fees would therefore, constitute a proper, valid and complete discharge of authority. It would not only be too technical but completely unjust to call upon a later Advocate to obtain his NOC in any other manner whilst 5 he has settled abroad. Similarly it would be unjust not to discharge the Advocate when his clients have shown the original letter to the Court showing his intention not to appear after he was paid his full fees. 8.It may be mentioned that the provision for NOC of an Advocate is with an object to protect the Advocates from receiving their fees as they are the Officers of the Court. Once the purpose is served, the clients are free to engage any other Advocate of their choice. Putting restrictions upon parties in Court from engaging an Advocate of their choice would be a violation of the human right to obtain access to justice. 9.It may be mentioned that the order dated 4th December 2008 came to be passed because the NOC of the earliest Advocate was not seen by the Court. Even the xerox copy of the letter dated 13th March 2002 of Mr. Z.K.Mehta which has been annexed to the Vakalatnama of Mr. Sharad Bhosale was not shown to the Court and has not been referred to in the order dated 4th December 2008. 10.The Plaintiffs/Petitioners Advocate now states that it was part of the affidavit in support of Notice of 6 Motion No.558/2006 annexed as EXHIBIT-D which was not brought to the notice of the Court. It is seen from reading of the order that my attention was not drawn to that exhibit. Once it is seen that the first Advocate has given a valid NOC and it is seen that the 2nd Advocate has sought to file his Vakalatnama annexing the NOC, the technical objection relating to the NOC vanishes. This Court is not concerned with the earlier Vakalatnamas except for the purpose of showing the NOC of each of the Advocates. The Advocate s Firm that sought to appear in Notice of Motion No.558/2006 had obtained the NOC of the earlier Advocate Mr. Sharad Bhosale. That aspect has not been challenged by Respondent No.3 herein. 11.Consequently interest of justice requires and demands that the Plaintiffs/Petitioners be allowed to represent themselves in the suit through their chosen new Advocate. If this fact was shown to the Court, the observations in paragraph 1 of the order dated 4th December 2008 would not have been made. Now when the Advocate has shown the facts to the Court those observations must be modified upon reviewing the order. 12.The authority to have been given for prosecution of the suit by the Plaintiffs/Petitioners, as a matter of 7 course, must be by each of the Plaintiffs since the Plaintiffs cannot appear through 2 Advocates. The Plaintiffs/Petitioners in this Suit are flat purchasers of the Society. I am told that several flat purchasers have transferred their flats to new flat purchasers and are not available and cannot prosecute the suit. Initially 24 Plaintiffs/ Petitioners had sued. The new Vakalatnama in favour of M/s. Leega Apex has been signed by 10 of those Plaintiffs. The Advocate on behalf of the Plaintiffs/Petitioners in Review Petition as stated that the other Plaintiffs are not available and cannot sign. He rightly pointed out that in the suit all the Plaintiffs would be required to give their authority and as such all the Plaintiffs who cannot give authority to the Advocate or who cannot prosecute the suit would have to be deleted. However, that exercise can be undertaken only after the suit is restored to file. In Notice of Motion NO.558/2006 the suit is not even restored to file because of the Plaintiffs had not given authority to their then Advocate to appear. The earlier Vakalatnama was signed by the Secretary of the Society. The Society was not the party Plaintiff. 13.The Advocate for Respondent No.3 has drawn my attention to earlier affidavits of the Plaintiffs and earlier orders passed by the Court. It is seen that 8 the Plaintiffs have taken out a number of applications and have yet not been able to have their suit restored to file and to amend their plaint to that effect, because of various technicalities of the NOCs of earlier Advocates as well as the signatures of the flat purchasers of the building and/or the authorised representatives of the Society. 14.It would be improper and unjust not to allow the Plaintiffs to have the suit restored so that they can then take out necessary proceedings for amendment of the plaint to conform to the procedural requirements. 15.Once it is seen that the NOC of the first Advocate was correctly given to the 2nd Advocate and it is seen that unfortunately for the Plaintiffs even the second Advocate has then sought not to represent the Plaintiffs and in fact the 3rd Advocate has also come and gone, the Plaintiffs cannot be left bereft of legal representation. 16.The order dated 4th December 2008, therefore, requires to be reviewed. The NOC of the 1st Advocate has been correctly given. The 2nd Advocate has admittedly given NOC to the present Advocates, the 3rd Advocate having appeared only in Notices of Motion for restoration 9 after the suit came to be dismissed. 17.The Plaintiffs must be allowed to be represented by the present Advocates. 18.Notice of Motion No.558/2006 is therefore, required to be allowed. Hence the following order. O R D E R 1.The Review Petition is allowed. 2.Order dated 4th December, 2008 is set aside. 3.Order in Notice of Motion No.558/2006 shall be as follows:- The order dated 5th February, 2004 dismissing the suit is set aside. The suit is restored to file. 4.The interim order cannot be and is not restored. 5.The original NOC of Mr. Z.K. Mehta is returned to the Plaintiff s Advocate. [SMT.ROSHAN DALVI, J.]