IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 101 OF 2001 LETTERS PATENT APPEAL NO. 101 OF 2001 LETTERS PATENT APPEAL NO. 101 OF 2001 IN IN IN FIRST APPEAL NO. 49 OF 1990 FIRST APPEAL NO. 49 OF 1990 FIRST APPEAL NO. 49 OF 1990 Shri Narayan Hariram Shindore ...Appellant (Orig.Appellant/ Defendant) V/s. Sau.Shantabai Laxman Shinde ...Respondent (Orig.Respondent/ Plaintiff) Mr.Mohan Pungalia for the Appellant. CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & CORAM : D.K. DESHMUKH & V.M. KANADE, JJ. V.M. KANADE, JJ. V.M. KANADE, JJ. DATED : JANUARY 17, 2008 DATED : JANUARY 17, 2008 DATED : JANUARY 17, 2008 P.C. :- P.C. :- P.C. :- 1. This appeal is directed against the order dated 1st September, 1999 passed in First Appeal No.49 of 1990 by the learned Single Judge of this court. The First Appeal was filed by the present appellant who was the original defendant in the suit. The suit was filed for a decree of specific performance of an Agreement. The decree of specific performance was sought in relation to some land. It appears that after the defendant was served with the summons, he appeared before the court and was represented by a lawyer. He sought several - 2 - adjournments without filing written statement but the written statement was not filed. The Court, therefore, directed that the suit to proceed without written statement. The plaintiff filed affidavit in support of the claim. The trial court passed decree in favour of the plaintiff on 19th October, 1988. Feeling aggrieved by that decree, first appeal was filed in this Court. That first appeal has been dismissed by the judgment which is impugned in the appeal. 2. Perusal of the judgment of the learned Single Judge shows that before the learned Single Judge, only one point was argued viz. though the written statement was not filed by the defendant when the Advocate pleaded no instructions, it was incumbent upon the trial court to issue notice to the defendant for his appearance before passing the decree against him. Reliance was placed on the judgment of the Supreme Court in the case of Malkiat Singh and another v/s. Joginder Singh and Malkiat Singh and another v/s. Joginder Singh and Malkiat Singh and another v/s. Joginder Singh and others, reported in AIR 1998 Supreme Court 258. others, reported in AIR 1998 Supreme Court 258. others, reported in AIR 1998 Supreme Court 258. The learned Single Judge examined his argument and also judgment of the Supreme Court. The Court observed : - 3 - "There is no such rule, and at least I do not find any, that even if defendant does not choose to file written statement despite repeated adjournments sought by his advocate and granted by the court and then his advocate pleads no instructions, it is obligatory upon the court to give notice to the defendant before proceeding further in the suit. Malkiat Singh (supra) is not an authority for such proposition as canvassed by the learned counsel." 3. Before us, the same submission was made. We find that the time for filing written statement was given on 10 occasions, still written statement was not filed. We have also not been shown any law requiring the court to issue notice to the party when the lawyer reports no instructions from the party. In our opinion, in this situation, the conduct of the party is also relevant. If a lawyer makes a statement before the court that he has no instructions from the party though he has been given instructions by the party and as a - 4 - result of that statement, the court makes an order adverse to the interest of that party, the normal human conduct would be, as and when the party comes to know of the order made against him due to the conduct of the lawyer, to approach the lawyer and seek his explanation as to why he has made incorrect statement before the Court and when proceedings are filed in court, allege that the lawyer has, without their being any justification, made an incorrect statement which has resulted in the court making adverse order against the party. Correspondence that would be exchanged between the party and the lawyer in that regard should be placed before the court and that lawyer should also be joined as a party so that he could get an opportunity to defend the allegations made against him because the allegation that the lawyer without any justification has made an incorrect statement before the court is a serious allegation against a professional. In the present case, we find that though the appellant was claiming that the lawyer was not justified in stating before the court that he has no instructions from the appellant, no correspondence was exchanged between the lawyer and the - 5 - party and the lawyer was also not brought before the court so that he could get an opportunity to meet the allegations made against him. In such a situation, in our opinion, the case of the appellant that the lawyer made an incorrect statement before the court, cannot be accepted. Unless that position is accepted, no relief could have been granted to the appellant. Thus, we find no fault with the judgment and the order of the learned Single Judge. It was submitted before us that even assuming that the defendant has not filed written statement, still the court was not justified in passing decree of specific performance on the basis of the averments made in the plaint. Perusal of the order of the learned Single Judge shows that no such contention was urged before the learned Single Judge. In fact, in para 7 of the judgment, the learned Single Judge has categorically stated that no other point was urged before him. Though the learned Advocate submitted that such a contention was urged before the learned Single Judge, in our opinion, as the point was not urged before the learned Single Judge and the point is a mixed question of law and fact, it cannot be allowed to be - 6 - urged in this appeal for the first time and if the contention was urged before the learned Single Judge and still the learned Single Judge says that the point was not urged as the learned Single Judge has categorically observed that only one point was urged before, the remedy of the appellant was to approach the learned Single Judge for correction in his judgment. The appellant has not done that and therefore, we cannot permit the appellant to urge the point for the first time in the Letters Patent Appeal. Taking overall view of the matter, we find, therefore, no substance in the appeal. 4. Appeal, therefore, is disposed of. (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (D.K. DESHMUKH, J.) (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)