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PETITIONER: NIRANKAR NATH WAHI AND OTHERS

       Vs.

RESPONDENT: FIFTH ADDL. DISTRICT JUDGE, MORADABAD AND ORS.

DATE OF JUDGMENT07/06/1984

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) SEN, A.P. (J)

CITATION:  1984 AIR 1268            1984 SCR  (3) 917  1984 SCALE  (1)921

ACT:      Code of  Civil Procedure  1908 Order  17 and  Order 20- Adjournment-Request for further adjournment to engage Senior Counsel refused-District  Judge keeping  judgment ready  and pronouncing  judgment  dismissing  appeal-Procedure  whether just, fair and reasonable.      Practice  and  Procedure:  Adjournment-Request  for  by appellant to engage Senior Counsel-Refused of-District Judge keeping judgment ready and delivering judgment-Whether there is  denial  of  reasonable  opportunity  of  hearing-Whether procedure adopted  by  District  Judge  in  preparation  and pronouncement of judgment vitiated.

HEADNOTE:      The appellant in the appeal was the landlord. He sought an adjournment of the hearing of his appeal that was pending before the  Additional  District  Judge  on  the  ground  of indisposition of  his senior  counsel. The respondent tenant was a  leading member  of  the  local  bar.  The  Additional District Judge  refused the  prayer, but granted three days’ time for  making alternative  arrangements and directed that the appeal  be posted  for hearing  of further arguments and that on  failure to  urge arguments,  the judgment  would be pronounced. On  the  adjourned  date,  the  appellant  again sought adjournment  on the  ground that  he could not secure the services  of his out-station senior counsel and that his counsel would not be able to appear for at least a month and that he may be granted further time to engage another senior counsel.  The   Additional  District   Judge   refused   the adjournment on the ground that more than sufficient time had been granted  for  additional  arguments,  and  added:  "The judgment is  ready  which  is  delivered".  The  appeal  was dismissed by  pronouncing the  judgment which  had been kept ’ready for being delivered’.      A writ  petition to  the High  Court by  the  appellant under Art. 227 was rejected in limine.      In the appeal to this Court, it was contended on behalf of the  appellant that:  (1) as the respondent was a leading and influential  member of  the local  bar, members  of  the local bar  were not willing to appear in the matter and that the appellant  was genuinely  handicapped  in  securing  the services of  an out-station senior counsel and (2) that even

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though  the   appeal  was  fixed  for  making  further  oral submissions on  the adjourned  date, the Additional District Judge kept  the judgment  ready and  pronounced it  when the appellant appeared  and requested for further time to engage a senior counsel. 918      Allowing the appeal, ^      HELD: The  judgment rendered  by the  District Judge is vitiated by  reason  of  the  failure  to  grant  reasonable opportunity of hearing to the appellant and by reason of the procedure adopted  in connection  with the  preparation  and pronouncement of  the judgment. The High Court also erred in rejecting the  writ petition  summarily.  The  judgment  and order passed  by the  High Court  as well as those passed by the Additional  District Judge  are set aside and the matter remitted to  the Court  of  the  District  Judge  for  being disposed of,  after affording  a reasonable  opportunity  of hearing to both the parties.      [924-G-925 B]      In the eyes of litigant a senior member of the bar when shed personally, might enjoy certain amount of sympathy with the members  of the  judiciary before  whom he is practising day in  and day out. This aspect cannot be overlooked having regard to the realities of life. [922 D]      The learned  Judge should  have shown awareness of this dimension of  the matter  and bearing in mind the adage that ’justice must  also appear to have been done’, ought to have dealt with the request for a short adjournment with a degree of understanding. [922 E]      It is  common knowledge  that when  a leading member of the Bar  is sued or sues in a personal capacity, the members of the Bar where he is practising are more than reluctant to accept a  brief against  the colleague and friend on account of  personal  relations  or  on  account  of  likelihood  of embarrassment. In  a matter  like this,  the litigant pitted against a leading member of the Bar, may also want to engage a counsel  of his  choice and  confidence for  it  may  well appear to him that not every member of the Bar might present his case  with the  degree of zeal, enthusiasm sincerity and conviction which  ordinarily a  litigant  expects  from  his advocate. [922 H ; 923 A]      The learned  Judge could  not have armed himself with a readymade  judgment   dismissing  the  appeal  when  further arguments on  behalf of  the appellant were yet to be heard. And apparently there was no time-compulsion to pronounce the judgment on  that very  day. The  Judgment rendered  by  the learned Judge  is thus  vitiated by reason of the failure to grant reasonable opportunity of hearing to the appellant and by reason  of the  procedure adopted  in connection with the preparation and pronouncement of the judgment. [924 F-G]      It was also not difficult to realise that a landlord is the  last  person  interested  in  prolonging  the  eviction proceedings or  the appeal  arising from the order passed in such proceedings.  The Additional District Judge should have shown awareness  of this  dimension of the matter, and under the  circumstances,   might  well   have  granted   a  short adjournment to  enable the  appellant  to  engage  a  senior counsel of his choice and confidence. [922 F-G]

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2562 of 1984.

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    From the  Judgment and  Order dated  21.7.1983  of  the Allahabad High Court in WP No. 8933 of 1983.           R.B. Mehrotra Advocate for the appellants.           K.P. Gupta Advocate for the respondents. 919      The Judgment of the Court was delivered by      THAKKAR, J.  "Justice", we do not tire of saying, "must not only  be done",  but "must  be seen to done". And yet at times some  Courts suffer  from temporary amnesia and forget these words  of wisdom.  In the result, a Court occasionally adopts a  procedure which  does not  meet the high standards set for itself by the judiciary. The present matter falls in that unfortunate  category of cases. That is the reason why, though we do not feel very happy in doing so, we have had to grant special  leave for  disposing of  the  appeal  not  on merits, but  only for  the  purpose  of  setting  aside  the impugned  judgment   rendered  by   the  learned  Additional District Judge,  Moradabad. To  set it  aside on  the ground that the  procedure adopted  by the  learned  Judge  at  the hearing of the appeal was not just and fair. And in order to consequently remand the matter for hearing the appeal afresh with a  view to  dispose it  of on merits in accordance with law.      The order-sheet  of May  20, 1983  of the record of the appeal in the Court of the learned District Judge shows that the  appellant   sought  adjournment   on  the   ground   of indisposition of  his senior  counsel from Saharanpur with a request that  the appeal  be adjourned to some date in July. The learned Additional District Judge refused the prayer but granted three  days’ time for making alternative arrangement and directed  that the  appeal  be  posted  for  hearing  of further arguments  on May 23, 1983. He further directed that in the  event of  failure to urge arguments on May 23, 1983, ’the judgment  will be  pronounced.’ Even  so, the appellant again sought  an adjournment on the ground that he could not secure the  services of his senior counsel from Sharanpur as he was not able to appear till the month of July, and prayed for some time to engage a senior counsel from Moradabad. The learned Additional District Judge refused the adjournment on the ground  that more  than sufficient time had been granted for  additional   arguments,   rejected   the   prayer   for adjournment, and then added:           "The judgment is ready which is delivered."      The appeal  was dismissed  by  the  learned  Additional District Judge by pronouncing the judgment which the learned Judge had  kept ready  for being  delivered. As the Act does not provide  for any  further appeal  or revision,  the High Court was  approached under  Art. 227 of the Constitution of India, but  the High  Court rejected  the Writ  Petition  in limine. Hence the present appeal by special leave. 920      The following facts emerge from the order-sheet:      (1)  On May  12, 1983  the learned  Additional District           Judge had  felt  that  the  request  made  by  the           appellant for  further arguments was justified and           had granted it.      (2)  On May 20, 1983 the Court granted only three days’           time to  make alternative  arrangement in  view of           the fact  that the  senior counsel from Saharanpur           engaged by  the appellant was not in a position to           appear on account of illness.      (3)  On 23rd May, 1983, the arguments were to be heard.           Notwithstanding that  the arguments were yet to be           heard on this date, the learned Judge had kept the           judgment   ready   for   pronouncing,   which   he

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         pronounced forthwith wilts refusing the prayer for           adjournment made  by the  appellant with a view to           engage a  senior advocate from the local bar since           the Advocate  from Saharanpur  already engaged  by           him was not available.      Two infirmities  have been pointed out to us in support of the  plea that  the procedure  adopted was  not just  and fair:      (i)  Even   though    the   appellant   was   genuinely           handicapped in  securing the  services of a senior           advocate to  appear for  him in  the matter having           regard to  the fact  that respondent No, 3 Kailash           Sahai Mathur  was a leading and influential member           of the Moradabad Bar and members, of the local Bar           were not  willing to  appear against  him  in  his           personal matter,  the learned  Additional District           Judge did  not afford him a reasonable opportunity           for engaging an Advocate ;      (ii) Even  though  the  appeal  was  fixed  for  making           further oral  submissions, on  the day  fixed  for           this  purpose,  the  learned  Additional  District           Judge had  kept his  judgment ready and pronounced           it when  the appellant applied for further time to           engage a  senior member  of the  Bar to  represent           him.      We do  not consider it necessary to delve deep into the facts. It  is sufficient  for our  purposes to  say that the said Respondent,  on his  own  showing,  is  a  leading  and influential member  of the  Moradabad Bar as is evident from the following  passage extracted from the written objections filed by the said Respondent himself at the trial : 921           "He has been a member of the State Bar Council for      a number  of years  and also been Vice President of the      U.P. Lawyers  Conference. The  opposite party  has been      Secretary, Vice-President  and  President  of  the  Bar      Association, Moradabad.  He is also manager of S.R.A.N.      Intermediate College,  Moradabad. He is a founder life-      member of  the Moradabad Civil Courts Club. He has been      President of  the Moradabad  Rotary  Club  and  is  its      member for  the last  about 33  years. He has also been      Worshipful Master of the Masonic Lodge."           "He has been member of the Senate, Law Faculty and      Board of  studies of  the Agra  University. He  is also      connected with  other Clubs  and social and educational      institutions. The  opposite party  was also the founder      Secretary of  the Moradabad  Branch of  the Indian  Law      Institute. In  his  various  capacities,  the  opposite      party has to meet a variety of persons, junior lawyers,      teachers, rotaries,  social worker,  clients etc.  each      day. He  has also  a huge library and so stated above a      fairly good  number of family members staying with him,      all this  makes even  the space  at the disposal of the      opposite party such too cramped."      It has  also been  established that  the appellant  was finding  it  extremely  difficult  to  engage  a  lawyer  to represent  him  as  he  was  pitted  against  a  senior  and influential member  of the  Bar personally,  and was seeking his eviction  from premises  in his  personal occupation for use as his residence-cum-office. A leading member of the Bar had already  returned the  brief, and a senior member of the Bar from  Saharanpur Bar  engaged by  the appellant had been repeatedly  asking  him  to  seek  adjournments  instead  of appearing in  the Court to argue the matter on the appointed day. The  adjournments were sought presumably because of his

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understandable reluctance  to appear  against a professional brother in a matter where he was personally concerned.      We have  no hesitation  in assuming that no Court would ever be  influenced by  the fact  that the  Respondent was a leading member of the Bar and influential person inasmuch as in the  eye of  law  all  citizens  are  entitled  to  equal treatment having  regard to  the doctrine of equality before law. If  a case for eviction was made out under the relevant statute, the Court would not hesitate to 922 release the  accommodation by  ordering eviction against the respondent notwithstanding  his status in the legal world or in the  society. If on merits, the application under Sec. 21 (1) (a)  and/or under Sec. 21 (1A) of the Act deserved to be disallowed, the  appeal would  be dismissed just as it would be dismissed  against any other tenant by reason of the fact that it  was wanting  in merits,  not because the respondent enjoyed a  particular status  in the  profession or  in  the society. This  is what everyone associated with the world of law is  doubtless expected  to know.  But a  litigant who is pitted against  such an influential member of the Bar having such a  high status  in the society, who himself mentions in his affidavit  these facts,  can be  excused for  not  being aware of  the doctrine  of equality  before law, not only in theory but also in practice.      So also the learned Judge might well have realised that the appellant  was fighting  a litigation  in which  a  very senior member  of the  bar was  personally  impleaded  as  a defendant (respondent)  and that it was understandable if he was labouring  under a psychological complex. The complex is understandable because  in the  eyes of  a litigant a senior member of  the bar when sued personally, might enjoy certain amount of  sympathy with the members of the judiciary before whom he is practising day in and day out. This aspect cannot be overlooked having regard to the realities of life.      The learned  judge should  have shown awareness of this dimension of  the matter  and bearing in mind the adage that ’justice must  also appear to have been done’, ought to have dealt with the request for a short adjournment with a degree of understanding.  More particularly as it was not difficult to realise  that a landlord is the last person interested in prolonging the  eviction proceedings  or the  appeal arising from the  order passed  in  such  proceedings.  The  learned Additional District  Judge, under  the circumstances,  might well  have   granted  a  short  adjournment  to  enable  the appellant to  engage a  senior counsel  of  his  choice  and confidence. For  this reason:  It is  common knowledge  that when a  leading member  of the  Bar is  sued or  sues  in  a personal capacity,  the members  of  the  Bar  where  he  is practising are more than reluctant to accept a brief against their colleague  and friend on account of personal relations or on  account of  likelihood of  embarrassment. In a matter like this,  the litigant  pitted against a leading member of the Bar  may also want to engage a counsel of his choice and confidence for  it may  well appear  to him  that not  every member of the Bar might 923 present his  case  with  the  degree  of  zeal,  enthusiasm, sincerity and conviction which ordinarily a litigant expects from his advocate.      We are  afraid that these vital aspects were overlooked by the  learned Judge  when he granted only three days’ time to make  alternative arrangement for engaging a local senior counsel by  reason of  the fact that the Saharanpur Advocate engaged by  the appellant was not in a position to appear on

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the ground of illness. This short adjournment for three days was granted  vide order  dated May  20, 1983. But on May 23, 1983, the learned Judge refused to grant further time to the appellant who had not been able to make suitable arrangement for engaging  a counsel  on that date. We are of the opinion that the  appellant has been denied a reasonable opportunity of hearing, and that the grievance made by the appellant, as regards the  procedure adopted  by the learned Judge on this score, is  not unfounded.  This is  one of  the two  reasons which has  impelled us  to set aside the order passed by the learned Additional  District Judge  and to remand the matter for a  fresh decision in accordance with law after affording reasonable opportunity of hearing to the parties.      The second  ground has  also been  substantiated in the sense that  the appellant cannot be faulted for entertaining the misgiving  that the  procedure adopted  was not  in tune with one’s  sense of justice. The grievance this time arises on account  of the  fact that  even though  May 23, 1983 was fixed for  hearing of  further oral  arguments, the  learned Judge had  kept a judgment ready for being pronounced and he proceeded to  pronounce it  forthwith  whilst  refusing  the prayer for  adjournment made  by the appellant. It is not in dispute that on May 23, 1983 the learned Additional District Judge had  granted three  days’ time  to  the  appellant  to enable him  to engage  an  advocate  to  make  further  oral submissions. Since  the matter was posted on 23rd May, 1983, for further oral arguments, the learned Judge could not have commenced writing  his judgment  till further arguments were heard on  that day  or the  request for adjournment, if any, was refused.  No objection  could  have  been  taken  if  on turning down  the request  for adjournment  on May 23, 1983, the learned  Judge had  commenced writing  or dictating  his judgment  in  the  Court.  But  he  had  kept  his  judgment (dismissing the appeal) ready for being pronounced. When the appellant made  a request for an adjournment for engaging an advocate, the  request was  turned  down  and  the  judgment prepared 924 in  advance,   dismissing  the   appeal,  was   straightaway pronounced. As  we pointed  out earlier,  the learned  Judge could be expected to be aware of the fact that the appellant being  a   landlord  seeking   an  eviction  order  was  not interested in  unnecessarily prolonging  the hearing  of the appeal. He also could not have been unaware of the fact that the respondent  was a leading member of the local Bar and an influential  person  and  that  under  the  circumstances  a citizen who  was pitted against him in a personal litigation was likely  to feel  that he  was not  getting just and fair treatment if  the judgment  was kept  ready in  anticipation that the  request for  adjournment was  going to be made and was  going   to  be   refused.  Supposing   no  request  for adjournment was  made and  a senior advocate had appeared on behalf of  the appellant  what would  have happened ? Before hearing his arguments, the learned Judge had already made up his mind  and kept  ready a  judgment wherein he had reached the conclusion  that there  was no  substance in the appeal. These embarrassing  facts stare  one in  the eye.  We do not think that fault can be found with the appellant if he felt, as any  other litigant  would have  perhaps felt,  that  the procedure adopted  was lacking  in fairness.  In fairness to the learned  Judge, we  must mention that in his order dated May 20, 1983, he had observed as under:-           "Appeal  adjourned   to  23-5-83   for  additional      arguments failing which judgment would be pronounced."      But the  fact remains  that the learned Judge could not

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have armed himself with a ready-made judgment dismissing the appeal when  further arguments  on behalf  of the  appellant were yet  to be  heard. And  apparently there  was no  time- compulsion to  pronounce the  judgment on that very day, The judgment rendered  by the  learned Judge is thus vitiated by reason of  the failure  to grant  reasonable opportunity  of hearing to  the appellant  and by  reason of  the  procedure adopted in connection with the preparation and pronouncement of the  judgment. We  may incidentally  observe that  we are also distressed  that the  High Court  rejected the petition summarily in  the face  of these  features and  obliged  the appellant to approach this Court.      Under the circumstances the appeal must be allowed. The judgment and  order passed  by the  Allahabad High  Court as well as  those passed  by the  learned  Additional  District Judge are  set aside and the matter is remitted to the Court of the District Judge, 925 Moradabad for  being disposed  of in accordance with law. In view of  what has  transpired, we  direct that  the  learned District Judge  himself shall  hear the  appeal,  and  after according reasonable  opportunity of  hearing  to  both  the parties  to   make  their  submissions,  dispose  it  of  in accordance with law uninfluenced by anything that might have been stated  in the  judgment which  is being set aside. The learned District  Judge  shall  dispose  of  the  appeal  as expeditiously as possible, and, in any event, not later than within four  months from  the date  of receipt  of a copy of this judgment,  which we hereby direct the office to send to the learned District Judge ’forthwith’.      There shall be no order as to costs. N.V.K.                                       Appeal allowed. 926