1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISIDICTION WRIT PETITION NO.4285 OF 2009 Sarojini Tanaji Shitole & Ors. ...Petitioners vs. Shivaji Dhondiba Kamthe ...Respondent Mr.Abhishek Pungliya for the petitioners Mr.S.V.Sadavarte for respondent nos.1 to 4 Mr.Harshad Bhadbhade for respondent no.7 CORAM :A.S.OKA,J. DATE : APRIL 8, 2010 P.C.: 1 Heard the learned counsel for the parties. By order dated 17 th August 2009, notice was issued to the respondents for final disposal confined to prayers (a) and (b) in the application at Exhibit-41. Prayers (a) and (b) read thus : (a) this Application may kindly be granted, and it may kindly be held that Shri Vilas Eknath Nangude never was nor is the Power of Attorney holder of these defendants and it be further held that these Defendants were not served with summons and notices of the present suit; (b) all the documents including written statement and say to injunction application at Exh.31 and affidavit and Vakalatnama of Advocate Shri H.S.Aglave and Advocate Shri Shailendra Aglave at Exh.20 filed on behalf of these Defendants be held not of these Defendants and the same be scrapped by passing 2 necessary order, and these Defendants be allowed to file their written statement and say to Exh.5; 2 The submission of the learned counsel for the respondent nos.1 to 4 was that the same Constituted Attorney continues to represent the petitioner in all other proceedings. He invited the attention of the Court to the proceeding filed by the Constituted Attorney on behalf of the petitioner before the Divisional Commissioner. Today, the learned counsel for the petitioners states that the said proceeding is filed by the Constituted Attorney without knowledge of the petitioners. 3 In the pending suit, the controversy is whether the 7 th respondent can act as Constituted Attorney of the petitioner. Impugned order suggests that prayers (a) and (b) will be decided after the parties adduce evidence. The evidence in the suit will be adduced on the issues which arise on the basis of the pleadings. Whether the 7 th respondent has an authority to represent the petitioners is a question which will have to be decided on merits before the Court proceeds with the final hearing of the suit. Therefore, the impugned order needs modification and it will have to be directed that the prayers (a) and (b) in the application at Exhibit-41 shall be decided by the trial Court after giving an opportunity to both the parties to adduce evidence for the purpose of deciding the said prayers. The prayers will have to be decided before the commencement of recording of the evidence in the suit. This Court has already observed in the earlier order that prayer (c) of the application at Exhibit-41 has been rightly rejected. 3 4 Hence, the petition is disposed of by passing the following order : i) Impugned order in so far as it relates to prayer (c) of the application at Exhibit-41 is confirmed. The trial Court will grant an opportunity to both the parties to adduce evidence for the purpose of deciding the prayers (a) and (b) of the application at Exhibit-41. After giving an opportunity to the parties to adduce evidence, the learned trial Judge will decide the prayers (a) and (b) of the application at Exhibit-41. This exercise shall be completed as expeditiously as possible and preferably within a period of four months from the date on which writ of this order is received by the trial Court. ii)All contentions of the parties in that behalf are kept open. ` JUDGE