: 1 : nms-3289-05=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3289 OF 2005 IN SUIT NO. 563 OF 1983 Jitendra Mansukhlal Parekh .. Plaintiff v/s. Sushilaben Wd/o. Chimanlal P. Doshi & Ors. .. Defendants ......... Mr. Jitendra M. Parekh plaintiff in person in support of NMS None for the defendants ......... CORAM : R.Y.GANOO, J. DATE : 28th OCTOBER, 2010 P.C. : 1. This notice of motion is taken out by the plaintiff in October, 2005 to have order dated 2nd December, 2003 set aside and for restoration of the suit. The defendants have filed affidavit-in-reply. Today, the defendants are absent. 2. I have heard plaintiff in person. Today, the plaintiff in person tendered affidavit dated 19th October, 2010 placing certain letters addressed to his solicitor on record. The plaintiff filed this suit against one Mr. C.P. Doshi for recovery of possession in regard to the suit flat mentioned in Exh.”A” to the plaint. Upon death of Mr. C.P. Doshi the defendant, his heirs were brought on record. It is noticed that on 2nd : 2 : nms-3289-05=.sxw December, 2003, learned Counsel Ms. Ranjita Pore i/by Mulla & Mulla appeared on behalf of the plaintiff and applied for permission to withdraw the suit unconditionally. The said prayer was granted. The order dated 2nd December, 2003 is as follows. “Learned advocate for the plaintiff seeks permission to withdraw the suit unconditionally. The prayer is granted. Hence, the suit is disposed of accordingly. Issue Court fee refund certificate as per Rule. Certified copy expedited.” 3. The plaintiff has in the affidavit in support of notice of motion enclosed a letter dated 13th July, 2003 received by him from advocate for the plaintiff. By the said letter, professional fees are demanded by the advocate for the plaintiff. Particulars of the said bill are enclosed to the said letter and at item no.24, it is specifically mentioned that advocate Ms. Pore appeared and applied for withdrawal of the suit. The plaintiff has also relied upon another letter dated 10th September, 2004 received from his advocate. A copy of the order dated 2nd December, 2003 is found to be enclosed to the said letter. 4. The plaintiff in the affidavit in support of the motion states that he had gone to his advocate’s office on 16th September, 2004 where he was told about withdrawal of the suit and he was also asked to collect the papers. He thereafter went to the advocate’s office on 23rd November, 2004 to collect the papers. He had also expressed desire to : 3 : nms-3289-05=.sxw get copy of the orders. He was told that copies are not ready and that is how he was asked to come again. The plaintiff wants that order dated 2nd December, 2003 should be set aside on the ground that he had not instructed his advocate to withdraw the suit. 5. Defendants have filed affidavit-in-reply. They have denied the averments in the affidavit in support of the notice of motion and they have opposed setting aside order dated 2nd December 2003. Rejoinder is filed, however nothing turns out in the said rejoinder. The additional affidavit which has been filed today is perused by me. To the said affidavit, one letter dated 14th June, 2010 addressed by the plaintiff to his advocate is enclosed. By the said letter, the plaintiff wanted to know particulars as to how his advocate got instructions to withdraw the suit. Similar letter is addressed by the plaintiff to his advocate being letter dated 26th July, 2010. 6. Today, the plaintiff has prayed for restoration of the suit by setting aside order dated 2nd December 2003 on the ground that he had not instructed to his advocate to withdraw the suit. I have heard plaintiff in person. For the reasons to follow, I am not inclined to set aside order dated 2nd December, 2003 and restore the suit to the file of this Court. It is to be noted that the suit is of 1983. The plaintiff admits : 4 : nms-3289-05=.sxw having received letter dated 13th July, 2004. The withdrawal of the suit is made known to plaintiff by the said letter. He also admits having received letter dated 10th September, 2004 by which copy of the order dated 2nd December, 2003 was delivered to him. It is pertinent to note that after perusing the order dated 2nd December, 2003, the plaintiff does not go to his advocate and question as to why the suit was withdrawn. In the affidavit in support, he states that he went to his advocate’s office on 16th september, 2004 for some other work. Assuming everything in favour of the plaintiff, if the plaintiff had not instructed his advocate to withdraw the suit, minimum that was expected was to lodge the protest with the advocate soon after he came to know about withdrawal of the suit and take out appropriate action. The present notice of motion has been taken out on 26th October, 2005. On plaintiff’s own showing, it is noticed that he has learnt about the disposal of the suit in or about July 2004. This will mean that plaintiff had taken one year for institution of the present notice of motion. The affidavit in support of the notice of motion by itself does not explain the delay in filing this notice of motion. Orally, across the bar, the Court was informed that as the plaintiff was not keeping well he had taken some time to file the present notice of motion. This oral explanation cannot be accepted as no material is produced in support of said explanation. : 5 : nms-3289-05=.sxw 7. If the word of the plaintiff namely he had not instructed his advocate to withdraw the suit is to be accepted as correct, the conduct of the plaintiff in the matter of attending the present suit is worth noting and surprising. If the plaintiff had not instructed to his advocate to withdraw the suit and his advocate has withdrawn the suit, then, the plaintiff ought to have lodged protest in writing and in a given case he could have made a complaint against the concerned advocate in the Bar Council to justify his grievance that the concerned advocate withdrawn the suit without his instructions. In view of this, it is just difficult to accept the bare word of the plaintiff that the suit came to be withdrawn without instructions. Looking to the record from the side of the advocates, there appears to be no reason for the advocate of the plaintiff to simply withdraw the suit without instructions as no advocate will withdraw the suit without instructions. It is to be noted that plaintiff’s advocate M/s. Mulla & Mulla have been attending to the suit right from its inception i.e. 10th January, 1983. Certainly, advocate for the plaintiff gains nothing by simply withdrawing the suit and that too without consent of the party. In fact, an advocate very well knows that if he withdraws the suit without instructions from the concerned client, there is every likelihood that he would face proceedings in the Bar Council for the misconduct namely withdrawing the suit without instructions. No advocate would like to face such risk. : 6 : nms-3289-05=.sxw 8. The present notice of motion was filed by the plaintiff in October, 2005. No specific correspondence is produced by the plaintiff since then till 14th June, 2010 as regards any grievance to be made by the plaintiff for the purposes of withdrawal of the suit. It is only when the matter was before the Court on 17th July, 2009, the plaintiff in June, 2010 has addressed a letter to his advocate seeking particulars as regards who gave instructions to withdraw the suit. This will go to show that the plaintiff was not at all serious in taking his advocate to task for withdrawal of the suit without instructions If the said case of the plaintiff was true, the plaintiff has not been able to show that the suit was withdrawn by his advocate without instructions. 9. For the reasons mentioned above, I am inclined to hold that plaintiff has failed to make out cause for setting aside the order dated 2nd December, 2003. Hence, following order is passed to dispose of the notice of motion. ORDER (i) Notice of motion is dismissed. There shall be no order as to costs. (R.Y.GANOO, J.)