SC: Seven-Day Notice Not Needed When Lawyer Files ‘No Instructions’ Pursis Under Bombay HC Rules

The Supreme Court held that the mandatory seven-day notice contemplated in the Bombay High Court Appellate Side Rules, 1960, and the Civil Manual, did not apply when an advocate submitted a pursis informing the court that he had no instructions from his clients, so long as he had not asked to withdraw his vakalatnama. The Court also set aside a Bombay High Court order passed under Article 227 of the Constitution, holding that the High Court had exceeded the supervisory limits imposed on it.

A Bench comprising Justices Manoj Misra and Joymalya Bagchi explained the limited scope of the jurisdiction under Article 227 and emphasised that it cannot be used to replace factual findings recorded by a court of first appeal.

The Bench stated:

“The power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction.”

Background

The proceedings arose from an eviction suit filed by a landlord under Sections 16(1)(g) and 16(1)(n) of the Maharashtra Rent Control Act, 1999. The defendants repeatedly did not appear, causing the suit to initially proceed ex parte. When the ex parte order was later recalled, they filed written statements.

During the suit, the defendants’ advocate filed a pursis declaring that he had “no instructions” and enclosed a communication he had issued to them. However, he did not request permission to withdraw from the case, nor did the court grant such permission. The matter continued, and as the plaintiff’s evidence was not challenged, the Trial Court passed an eviction decree on 4 March 2015.

The defendants preferred an appeal under Section 34 of the 1999 Act. The District Judge dismissed the appeal after examining the record in detail, noting that the defendants had not made any effort to clarify if they had received their lawyer’s communication and that their approach throughout showed unwillingness to participate in the proceedings. The Appellate Court also held that they could not derive benefit from their own non-participation.

Before the Appellate Court, they urged that they had been denied a proper opportunity to defend the suit, asserting that the seven-day notice requirement under the 1960 Rules had not been fulfilled.

The Appellate Court rejected this submission, observing that the pursis was not a withdrawal of appearance and therefore the procedural rules regarding withdrawal were not applicable. After the dismissal, the defendants invoked the writ/supervisory jurisdiction of the High Court.

High Court’s Intervention

The High Court reversed the orders of both the Trial Court and the First Appellate Court. It held that the requirements under Clause 660(4) of the Civil Manual and Rule 8(4) of the Appellate Side Rules were mandatory and had not been followed, as the pursis was filed the day after the advocate issued the letter to his clients. On this reasoning, the High Court concluded that the defendants had been denied a fair opportunity of hearing and remanded the matter to the Trial Court for a fresh adjudication.

Supreme Court’s Assessment

In appeal, the Supreme Court disagreed with the High Court’s approach, stating that the High Court had undertaken a factual reassessment that was not permissible under Article 227. The Bench held that the Appellate Court had thoroughly evaluated the defendants’ conduct and had reached a view that could not be termed perverse or irrational.

The Court held that the seven-day notice requirement arose only when an advocate sought withdrawal of a vakalatnama, which was not the situation in the present case. It noted that:

• The advocate had not applied to withdraw his vakalatnama.
• The Trial Court had not permitted withdrawal.
• The pursis did not request withdrawal.
• Even after the pursis was filed, the matter remained pending for more than three months.
• The defendants did not appear or appoint another advocate during this period.
• They also did not assert that they had not received their lawyer’s notice.
• Their earlier conduct showed repeated absence, including an ex parte order.

The Court held that the High Court had introduced procedural requirements that were not triggered, and thereby acted beyond the boundaries of supervisory control.

The Bench observed:

“Once the appellate court took into consideration all relevant aspects including the fact that pursis (Exh.42) did not seek withdrawal of the Vakalatnama, and withdrawal was not even permitted, there was no such jurisdictional error which warranted exercise of powers under Article 227 of the Constitution of India. The High Court without any justification went on to consider the procedure prescribed for withdrawal of Vakalatnama when neither withdrawal of Vakalatnama was permitted by the Trial Court nor the pursis prayed for its withdrawal. In such circumstances, the entire exercise of the High Court was misconceived.”

The Court further stated that the Appellate Court’s order was not open to interference under Articles 226 or 227, as it contained reasoned findings and did not suffer from any jurisdictional flaw.

The appeal was accordingly allowed.

Cause Title: Shri Digant v. M/s P.D.T. Trading Co. & Others