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PETITIONER: MAHABIR PRASAN SINGH

       Vs.

RESPONDENT: M/S JACKS AVIATION PRIVATE LTD.

DATE OF JUDGMENT:       13/11/1998

BENCH: S.Saghir Ahmad, K.T. Thomas

JUDGMENT:

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

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          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

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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."

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       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         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

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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

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          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.