Judicial function cannot and should not be permitted
to be stonewalled by browbeating or bullying methodology,
whether it is by litigants or by counsel. Judicial process
must run its even course unbridled by any boycott call of
the Bar, or tactics of filibuster adopted by any member
thereof. High Courts are duty bound to insulate judicial
ial functionaries within their territory from being
demoralised due to such onslaughts by giving full protection
to them to discharge their duties without fear. But
unfortunately this case reflects apathy on the part of the
High Court in affording such protection to a judicial
functionary who resisted, through legal means, a pressure
strategy slammed on him in open court.
It all happened in the following manner :
PETITIONER:
MAHABIR PRASAN SINGH v M/S JACKS AVIATION PRIVATE LTD.
citation;AIR 1999SC287
DATE OF JUDGMENT: 13/11/1998
Judicial function cannot and should not be permitted
to be stonewalled by browbeating or bullying methodology,
whether it is by litigants or by counsel. Judicial process
must run its even course unbridled by any boycott call of
the Bar, or tactics of filibuster adopted by any member
thereof. High Courts are duty bound to insulate judicial
ial functionaries within their territory from being
demoralised due to such onslaughts by giving full protection
to them to discharge their duties without fear. But
unfortunately this case reflects apathy on the part of the
High Court in affording such protection to a judicial
functionary who resisted, through legal means, a pressure
strategy slammed on him in open court.
It all happened in the following manner :
A civil suit for recovery of possession of a
building was filed by the appellant in the court of the
Additional District Judge, Tis Hazari, Delhi (Shri
S.N.Dhingra's court). Respondent filed written statement in
the suit. Taking advantage of certain admissions made in
the written statement, appellant preferred an application
under Order XII Rule 6 of the Code of Civil Procedure (for
short 'the Code') for pronouncing a judgment, having regard
to such admissions and for passing a decree for recovery of
possession of the suit premises. Respondent filed
objections to the aforesaid application and prayed for its
dismissal. When the application came up for argument on
21.5.1998, respondent filed a strange petition seeking
transfer of the case by the judge suo motu. How strange was
that petition can be shown by extracting the material
portion of it hereunder :
"That the counsel for the defendant is a member
of Delhi Bar Association and recently vide
Resolution dated 15.5.98 Delhi Bar Association
has boycotted the appearance of its members in
any case before this Hon'ble court. That the
counsel for the defendant being a member of the
Delhi Bar Association is bound by all the
resolutions passed by the executive Committee of
Delhi Bar Association and in such circumstances
the counsel for the defendant is not in a
position to appear in the said case before this
Hon'ble Court. That due to the said boycott
call, the defendant is taking necessary steps for
moving an application under Section 24, C.P.C.
before the Hon'ble District Judge, Delhi for the
transfer of the aforesaid case, in case the
Hon'ble Court is not inclined to suo-moto
transfer the said case. That serious prejudice
will be caused to the interest of the defendant
if any adverse order is passed on account of
non-appearance of the counsel for the defendant
and/or the defendant. That the said boycott call
by the Delhi Bar Association could not be
conveyed to the defendant and in such
circumstances the defendant is also not in a
position to cause personal appearance in the said
matter.
It is, therefore, most respectfully prayed
that this Hon'ble Court may be pleased to suo
moto transfer the aforesaid matter or in the
alternative this Hon'ble Court may be pleased to
adjourn the matter to some future date without
passing any adverse order so as to enable the
defendant to move necessary application before
the Hon'ble District Judge, Delhi."
The counsel for the defendant who filed the said
petition did not himself appear in the court for addressing
arguments on 21.5.1998 nor did he depute any other advocate
on his behalf. Learned Additional District Judge then passed
the following order:
"This application under Section 151 for transfer
of the case has been made. There is no provision
under Section 151 for transfer of case. Transfer
application lies before learned District Judge
under Section 24 CPC. The application is hereby
dismissed. Written arguments have been filed on
behalf of plaintiff on application under Order
XII Rule 6. To come up for orders on 30.5.98."
A revision petition was filed by the respondent
before the Delhi High Court in challenge of the aforesaid
order. A single Judge of the High Court entertained the
same on 29.5.1998 and ordered stay of proceedings before the
trial court. Appellant, who was innocent of the attitude of
the counsel for the defendant towards the Additional
District Judge, entered appearance in the High Court and
submitted that he has no objection to have the case
transferred to any other competent court and all that he
needed was a decision on the application made by him under
Order XII Rule 6 of the Code.
Appellant being an octogenarian has seemingly felt
that further delay in the trial proceedings would only
result in procrastination of his suit. But, despite the
aforesaid offer made by the appellant learned Single Judge
of the High Court adjourned the revision from time to time
until it reached the date 10.9.1998 on which day the
respondent filed a civil miscellaneous petition praying that
"in the event the Hon'ble High Court is pleased to allow the
revision and quash the impugned order, the suit presently
pending before Shri S.N. Dhingra, learned Additional
District Judge, Delhi may be transferred to some other
court."
The ground for making such a prayer was a newspaper
report that when the Secretary of Delhi Bar Association
shouted in open court in the presence of all litigants
asking Shri Dingier to stop working, the Judge did not
accede to it and then filthy language was hurled in the
court to which "other litigants present in the court also
raised their voice" against such invidious vituperations,
and that appellant was also one of such litigants.
Learned Single Judge of the High Court has noted in
the proceedings what appellant had stated before the court
that he has no objection in the case being transferred to
another court as prayed for by the respondent. Still,
learned Single Judge called for "the comments" of the
Additional District Judge concerned regarding the transfer
petition and posted the revision to a far off date (in the
month of January 1999) and stayed all further proceedings in
the trial court. Appellant has filed this special leave
petition at the above stage challenging the order
entertaining the revision and also the order by which the
revision has been adjourned to such farther extent.
We heard Shri Naresh Kaushik, Advocate for the
appellant and Shri Arun Jaitley, Senior Advocate for the
respondent. Neither of them even attempted to justify the
conduct of the counsel for the respondent in the trial court
in not attending the court on 21.5.1998. However, Shri Arun
Jaitley made a plea that the suit may be sent to another
court in view of all the aforesaid developments.
In our view the High court has committed a
jurisdictional error in entertaining the revision petition
filed by the respondent challenging the order dated
21.5.1998. That order is clearly not revisable by the High
Court in view of the specific interdict embodied in the
proviso to Section 115(1) of the Code. Under the same
sub-section, a High court is empowered to call for the
records of any case which has been decided by any court
subordinate thereto, if it had exceeded or failed to
exercise the jurisdiction vested in it, or had acted
illegally or with material irregularity. In such cases the
High Court has power to make such order as it thinks fit.
The restriction against exercise of such a general power has
been incorporated in the proviso which was inserted in the
sub-section by the CPC Amendment Act of 1976. That proviso
reads thus:
"Provided that the High Court shall not, under
the section, vary or reverse any order made, or
any order deciding an issue, in the course of a
suit or other proceeding, except where -
(a) the order, if it had been made in
favour of the party applying for revision, would
have finally disposed of the suit or other
proceeding, or
(b) the order, if allowed to stand, would
occasion a failure of justice or cause
irreparable injury to the party against whom it
was made."
Out of the two clauses in the proviso the former has
no application to the order which has been challenged in the
High Court because even if the application of the respondent
filed on 21.5.1998 was granted the suit would not have been
finally disposed of. The latter clause could be resorted to
only if that order, if allowed to stand, would occasion a
failure of justice or cause irreparable injury to the
respondent. Thus, even if such an order passed by the
subordinate court has any illegality or is affected by
material irregularly, the High Court will not interfere
unless the said order, if allowed to stand, would occasion a
failure of justice or its effect would be infliction of
irreparable injury to any party.
. The learned
counsel for the petitioner has placed reliance on a
decision of the Supreme Court in case Ram Lal Vs.
Madan Gopal & ors. reported as 1995 Supp(4) SCC 655.
Issue notice to the respondent on the above limited
question asking the respondent to show cause as to
why the petition be not admitted returnable on
12.8.1998."
Further, learned single judge ordered notice to be
issued returnable on 12.8.98 and stayed the proceedings in
the trial court in the meanwhile.
The decision cited before the learned single Judge
(Ram Lal vs. Madan Gopal, 1995 Suppl. (4) SCC 655) is
ostensibly inapplicable because in that case the aggrieved
party was denied the opportunity to address oral arguments
through counsel and the decision was taken on the basis of
written arguments. Their lordships observed "having regard
to the special facts and circumstances of the case we think
it proper that the view of the Additional District Judge
should be reobtained before his decision of fact becomes
binding in second appeal before the High Court." The case
was thereafter remitted back to the lower court for
rehearing the appeal to give opportunity to the parties'
counsel to address their arguments but subject to payment of
Rs. 5000?- as costs. The said decision cannot be regarded
as a precedent particularly in view of what the learned
judge had cautioned that the particular course was adopted
by the court "having regard to the special facts and
circumstances" of that case.
This is not a case where respondent was prevented by
Additional District Judge from addressing oral arguments,
but the respondent's counsel prevented the Additional
District Judge from hearing his oral arguments on the stated
cause that he decided to boycott that court for ever as the
Delhi bar Association took such a decision. Here the counsel
did not want a case to be decided by that court. By such
conduct the counsel prevented the judicial process to have
its even course flowed. Respondent has no justification to
approach the High Court as it was the respondent who
contributed to such a situation.
If any counsel does not want to appear in a
particular court, that too for justifiable reasons,
professional decorum and etiquette require him to give up
his engagement in that court so that the party can engage
another counsel. But retaining the brief of his client and
at the same time abstaining from appearing in that court,
that too not on any particular day on account of some
personal inconvenience of the counsel but as a permanent
feature, is unprofessional as also unbecoming of the status
of an advocate. No court is obliged to adjourn a cause
because of the strike call given by any Association of
Advocates or a decision to boycott the courts either in
general or any particular court. It is the solemn duty of
every court to proceed with the judicial business during
court hours. No court should yield to pressure tactics or
boycott calls or any kind of browbeating.
A three-Judge Bench of this Court has reminded
members of the legal profession in Lt. Col. S.J. Chaudhary
vs. State (Delhi Administration) (1984 1 SCC 722) that it is
the duty of every advocate who accepts brief to attend the
trial and such duty cannot be over stressed. It was further
reminded that "having accepted the brief, he will be
committing a breach of his professional duty, if he so fails
to attend."
Hence the order passed by the Additional District
Judge on 21.5.1998 has no legal infirmity, mush less any
scope for occasioning failure of justice. Question of that
order causing any irreparable injury does not arise
particularly because the said order was byproduct of the
unwholesome strategy adopted by the respondent's counsel in
abstaining form the court and reporting that he would not
attend that court in future. The party who brought about
such a situation cannot be heard to complain that an order
was passed consequently.
We unhesitatingly conclude that the High Court has
committed grave error in entertaining the revision petition
and passing the impugned order. Accordingly we quash the
aforesaid revisional proceedings.
Sri Arun Jaitley, learned Senior Counsel, made a
plea before us that in view of all what happened and also in
the light of the fact that appellant too has no objection to
change the court, the case may be allowed to be transferred
to another court. We have considered the aforesaid plea in
all seriousness. We do not come across any valid ground
whatsoever for a change of court. A change of court is not
allowable merely because the other side too has no objection
for such change. Or else, it would mean that when both
parties combine together they can avoid a court and get a
court of their own choice. We are not disposed to give such
an option to the parties. We, therefore, refrain from
acceding to the said plea made by Sri Jaitley.
We direct the Additional District Judge, Tis Hazari
before who the suit is pending, to proceed with it according
to law. Appeal is allowed in the above terms.
" A lawyer is under obligation to do nothing that
shall detract from the dignity of the Court, of
which he is himself a sworn officer and
assistant. He should at all times pay deferential
respect to the Judge, and scrupulously observe
the decorum of the court room."
(Wervelle's Legal Ethics at p.182)
Of course, it is not a unilateral affair. There is a
reciprocal duty for the court also to be courteous to the
members of the Bar and to make every endeavour for
maintaining and protecting the respect which members of the
Bar are entitled to have from their clients as well as from
the litigant public. Both the Bench and the Bar are the two
inextricable wings of the judicial forum and therefore the
aforesaid mutual respect is sine qua non for the efficient
functioning of the solemn work carried on in courts of law.
But that does not mean that any advocate or group of them
can boycott the courts or any particular court and ask the
court to desist from discharging judicial functions. At any
rate, no advocate can ask the court to avoid a case on the
ground that he does not want to appear in that court.
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