(1.) This appeal under Clause 15 of the Letters Patent is directed against an order of a learned single Judge dated 2nd September, 2010, in Criminal Application No.84 of 2008 with Criminal Application No.147 of 2010 with Criminal Application No. 125 of 2008 in Criminal Writ Petition No. 1468 of 2003, alongwith Misc. Petition (Lodg) No.306 of 2010 in Testamentary Petition No. 237 of 2009. The appellants before us are original respondent Nos.1 and 2. They are both senior citizens. The respondent Nos.3 and 4 are the original respondents.
(2.) It is the case of the appellants that they had presented an application on an affidavit dated 5th April 2010 to the then Hon'ble the Chief Justice to take immediate measures to control grant of ex-parte orders, take immediate corrective measures and provide speedy justice to the appellants and consolidate three matters to be heard together, namely, Criminal Writ Petition No.1468 of 2003 of the Appellate Side, Misc. Petition (Lodg) No.306 of 2010 in Testamentary Petition No. 237 of 2009 on the Original Side and Testamentary Petition No. 282 of 2010 on the Original Side. All the three matters were filed by the original respondent No.1 to this appeal and others. An order was passed on 24th August, 2010, clubbing these three matters and assigning them to the learned single Judge. On 30th August, 2010, all three matters were listed on the Board of the learned single Judge for directions. They were adjourned to 1st September, 2010, with a direction to the Constituted Attorney Ms. Smita Patel to satisfy the Court about her authority to argue the matter. It is the appellants' case that they had appointed her as their Constituted Attorney. On that date, namely, on 1st September, 2010, she placed before the Court several authorities in support of her submission that she has been duly authorized in law by these appellants. It is then claimed that on 2nd September, 2010, the impugned order has been passed and we are concerned with the correctness and legality of this order.
(3.) The sequence of events and the essential controversy can very well be appreciated if one reproduces an order passed by this Court on 30th September, 2013, in these very proceedings :
"2. The facts of the case, briefly stated are as under:-
2.2 Mrs.Veena Jaswant Shah and others filed Misc.Petition (Testamentary) No.54 of 2010 (Initially Misc.Petition (L) No.306 of 2010) for revocation of the above probate on the ground that Mr.Rajendra Vinayak Mehta had played a fraud on the Court by concealing the Will dated 14 May 1992 executed by mother/parents of Mr.Rajendra Vinayak Mehta in favour of Mrs.Veena Jaswant Shah.
2.3 Mr.Rajendra Vinayak Mehta and his Constituted Attorney Ms.Smita Patel filed a criminal complaint against Mrs.Veena Jaswant Shah, her husband Mr.Jaswant Shah and their son Mr.Sameer Shah alleging that the accused had forged the Will dated 14 May 1992 for obtaining the flat in question and also forged signatures to obtain Rs.16 lacs and odd standing in the name of parents of Mr.Rajendra Vinayak Mehta. The Metropolitan Magistrate, Mumbai ordered an investigation under section 202 of Cr.P.C. and after police submitting the report of inquiry on 25 September 2002, the Metropolitan Magistrate took cognizance of the report and issued process against the accused, Mrs.Veena Jaswant Shah, aged 74 years, Mr.Jaswant Shah, aged 78 years and their son Mr.Sameer Shah, aged 44 years. All the three accused filed Criminal Writ Petition No.1468 of 2003 challenging the order of the Metropolitan Magistrate issuing process.
3. On 2 September 2010, learned Single Judge (Coram: Hon'ble Mrs.Justice Roshan Dalvi) passed three separate orders:
(A) By the first order dated 2 September 2010, learned Single Judge dismissed Criminal Writ Petition No.1468 of 2003 and directed the continuance of criminal investigation in accordance with law.
(B) By the second order dated 2 September 2010, learned Single Judge stayed the hearing of the Misc.Petition (Testamentary) No.54 of 2010, which was filed for revocation of the probate sine-die till disposal of the criminal complaint filed by Mr.Rajendra Vinayak Mehta against Smt.Veena Shah and ors.
Appeal No.311 of 2011 (initially Appeal (L) No. 343 of 2012) filed by Mr.Rajendra Mehta against the above order has been allowed by another Division Bench by judgment dated 5 April 2013. The Division Bench has set aside the above order dated 2 September 2010 and has directed that the application for probate shall be heard and decided in accordance with law, as expeditiously as possible.
(C) Learned Single Judge passed the third order dated 2 September 2010, in respect of controversy whether Ms.Smita Patel has a right to represent Mr.Rajendra Vinayak Mehta and his brother in the revocation proceedings/criminal proceedings. Dispute in the above proceedings is about the property left by the parents of Mr.Rajendra Vinayak Mehta and his brother Mr.Deepak Mehta. Mr.Deepak Mehta's wife is stated to be cousin of Ms.Smita Patil ( who is not a lawyer), in whose favour the two brothers, settled in USA, have executed separate Power of Attorney. Ms.Smita Patel, the Constituted Attorney, claims to know family for last 20 years and claims to have the confidence of the two brothers, who are settled in USA. Learned Single Judge held that Ms.Smita Patel should not be allowed to seek the right of audience as Constituted Attorney. This order is challenged in Appeal No.25 of 2011.
4. The discussion hereinafter is with reference to the said last order dated 2 September 2010. Learned Single Judge (Hon'ble Mrs.Justice Roshan Dalvi) considered the provisions of C.P.C., Cr.P.C. , Advocates Act, judgments of the Supreme Court, Bombay High and other High Courts and after culling out principles from those decisions, referred to the conduct of Constituted Attorney in the other proceedings including the proceedings covered by the decision of the Supreme Court in Vipin Pandya Vs. Smita Ambalal Patel, 2007 6 SCC 750 and proceedings before the Co-operative Court, and concluded:
"This Court would, therefore, do well in not exercising the discretion in favour of the Constituted Attorney (Ms.Smita Patel) to represent them (Mr.Rajendra Vinayak Mehta and his brother) as their pleader and to seek the right of audience."
This order was passed in Criminal Application No.84 of 2010 as well as in notices of motion in the revocation petition.
4A. The learned Single Judge referred to the conduct of Constituted Attorney Ms.Smita Patel in paragraph 23 of the aforesaid order dated 2 September 2010 in following terms:
"23. Mr. Madon, Sr. Counsel on behalf of the Respondents drew my attention to the judgment of the Supreme Court in the case of Vipin Pandya Vs. Smita Ambalal Patel, 2007 6 SCC 750 showing strictures passed against the Constituted Attorney and exemplary costs of Rs.5 lakhs imposed upon her not upon the demerits of her case, but upon her conduct of the proceedings. It would do well to reproduce the observations of the Court with regard to the impeccability or otherwise of her behaviour, which runs thus:
21. It is indeed disgusting to see a litigant attempting to intimidate the Supreme Court and two of its Judges in such a crude and obnoxious manner.
22.A resume of the facts clearly reveals the incorrigible and recalcitrant attitude of the respondent. We could perhaps condone her errant conduct if she was merely a highly strung and impetuous lady oversensitive to her case and unaware of the nuances of the law and the decorum to be maintained in court but we are satisfied that no ignorance nor mental imbalance is discernible which can be pleaded in extenuation of her behaviour. The record reveals that she is well aware of the conduct of the judicial process and the law and facts relating to her case, but she has evolved a strategy which has thus far kept her in good stead as it has been designed to filibuster the proceedings in case she finds that they are not taking the direction that she has chalked out and that despite her conviction for contempt of court on two occasions and numerous admonitions and warnings notwithstanding, she has remained unfazed and has in a most unbecoming manner relentlessly and ruthlessly pursued the litigation. We also quote yet again from the judgment of the Division bench dated 16-11-2000:
"It may also be possible that she has lost her mental balance because of the said facts. (Though, considering the manner in which the contemner coolly argued the appeal before us, we are not inclined to believe that she has really lost her mental balance)"
We completely endorse this observation."
Mr. Madon also drew my attention to the order of the Cooperative Court at Bombay in Misc. Application No.222/2009 in Dispute No.12/2007 between the Respondents and the Secretary of the Society which was a party to that dispute showing how the fracas ensued resulting in the arrest of the Constituted Attorney of the Respondents to bring peace in the Court room.
5. Mr. Rajendra Vinayak Mehta has filed Appeal No.25 of 2011 challenging the said last order dated 2 September 2010 in Criminal Application No.84 of 2010 and other connected matters. It was contended that the signed impugned order dated 2 September 2010 passed in Criminal Application No.84 of 2010 and other connected matters was not on record when inspection of the record was taken by the appellants Mr.Rajendra Vinayak Mehta and his constituted attorney Ms.Smita Patel on 11 October 2010. It was alleged that at that time only unsigned copy of the impugned order dated 2 September 2010 running into twelve pages was on record. But the unsigned order was uploaded, hence the impugned order was a nonexistent order.";