Tuesday 16 October 2012

Judicial function can not be disturbed by bullying methodolgy of advocate or litigants


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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