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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