Mahabir Prasan Singh Vs. M/S Jacks Aviation Private Ltd. [1998] INSC 540 (13 November 1998)

S. Saghir Ahmad, K.T. Thomas Thomas. J.

Leave granted.

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.

While entertaining the revision petition learned Single Judge has observed thus:

"Thr lrstnrf voundrl got yhr pryiyionrt on indytuvyiond dysyrd yhsy yhr pryiyionrt in yhr ptrdrny ptovrrfinhd sd dsild snf yhr psty og yhr impuhnrf otfrt ehivh trlsyrd yo trdponfrny'd spplivsyion gilrf unfrt XII Rule 6 CPC. The learned counsel for the petitioner has placed reliance on a 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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