SBCMISC. APPLICATION NO.81/2008 IN SBCSA NO.219/2006 – MOIZ ALI AND ORS. V/S SMT. AAMINA BAI AND ORS. : JUDGMENT DTD. .15.12.2008 1/4 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL MISC. APPLICATION NO.81/2008 IN S.B. CIVIL SECOND APPEAL NO.219/2006 1. Moiz Ali 2. Abbas Ali 3. Sabbir Ali all sons of late Sh. Kayyum Ali, all residents of Taya State Emperior Dairy, 36, Udaipur. versus 1. Smt. Amina Bai W/O Abdul Hussain 2. Smt. Malekha W/O Asiq Hussain Navaniwala 3. Miss Muniram alias Manina D/O late Abdul Hussain. 4. Shri Mohammed Hussain S/o late Kayyum Ali PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.N.S. Acharya, for the applicants – appellants. DATE OF JUDGMENT : 15th December, 2008. JUDGMENT 1. This application has been filed by the applicants – appellants for recalling of the order dtd.17.9.2008 whereby the appeal of the SBCMISC. APPLICATION NO.81/2008 IN SBCSA NO.219/2006 – MOIZ ALI AND ORS. V/S SMT. AAMINA BAI AND ORS. : JUDGMENT DTD. .15.12.2008 2/4 applicants - appellants – tenants was dismissed as not pressed by counsel Mr. S.D.Vyas upon the undertaking of the defendants – appellants to handover vacant and peaceful possession of the suit premises to the plaintiffs – respondents on or before 31..32009. 2. The learned counsel for the appellants – tenants Mr. N.S. Acharya now submits that the then counsel Mr. S.D.Vyas was engaged by the appellants – defendants to argue the appeal on merits and therefore, he could not get it dismissed as not pressed and therefore, the said order deserves to be recalled. He relies upon the decision of Hon'ble Supreme Court in the cases of Smt. Lachi Tewari V/s Director of Land Records and others reported in AIR 1984 SC 41, Smt. Jamil Bai Abdul Kadar V/s Shankar Lal Gulabchand and ors. reported in AIR 1975 (SC) 2202 and Rafiq V/s Munshi Lal reported in AIR 1981 SC 1400. Mr. N.S.Acharya, learned counsel for the appellants submitted that the said order may be recalled and the appeal may be heard on merits. 3. Having heard the learned counsels, this Court is not satisfied to recall the order dtd.17.9.2008. The said order was passed at the SBCMISC. APPLICATION NO.81/2008 IN SBCSA NO.219/2006 – MOIZ ALI AND ORS. V/S SMT. AAMINA BAI AND ORS. : JUDGMENT DTD. .15.12.2008 3/4 request of the learned counsel for the appellants, which is presumably upon instructions of his clients. The power of the advocate engaged by the appellants even to withdraw the said appeal is unquestionable and that is so clearly stated in the Vakalatnama itself given by the appellants in the present case. The judgments cited at the bar are not applicable here and they arose in different circumstances. In the case of Smt. Lachi Tewari (supra), on account of non-appearance of the appellant, the Court restored the matter holding that the appellant could not be punished for negligence on the part of the lawyer. In the case of Smt. Jamilabai (supra) the Hon'ble Apex Court observed that junior counsel appearing on behalf of the Senior who was not appointed could not enter into compromise on behalf of the party who was not appointed. The third case of Rafiq (supra) was also a case of dismissal of appeal in case of default of appearance of respondent's counsel. These cases are obviously not applicable to the facts of the present case. 4. In the present case, the learned counsel for the appellants Mr. S.D.Vyas himself has appeared in the Court and at some stage of the arguments, he considered it better not to press the appeal and to seek SBCMISC. APPLICATION NO.81/2008 IN SBCSA NO.219/2006 – MOIZ ALI AND ORS. V/S SMT. AAMINA BAI AND ORS. : JUDGMENT DTD. .15.12.2008 4/4 time to handover the vacant and peaceful possession of the suit premises. The said act on the part of the learned counsel for the appellants cannot be said to be beyond his authority and therefore, in the considered opinion of this Court, the said order does not need any recall. It is also observed that on account of mere change of counsels, if such applications are allowed to be filed and entertained, it would encourage wrong practice, which this Court cannot coutenance. 4. The misc. application is, therefore, found to be devoid of merit and the same is accordingly dismissed, however without imposition of any costs. (Dr.VINEET KOTHARI)J. Item No.21 Ss/-