http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: RAIS AHMAD

       Vs.

RESPONDENT: STATE OF U.P.  & ORS.

DATE OF JUDGMENT:       13/08/1999

BENCH: S.Saghir Ahmad, D.P.Wadhwa

JUDGMENT:

        S. SAGHIR AHMAD, J.

              Leave granted.

     Appellant’s  writ petition in the Allahabad High Court which was listed on 24.4.1996 was disposed of in the absence of  his counsel and was dismissed on merits.  An application filed thereafter for setting aside the order dated 24.4.1996 was  dismissed on 27.8.1997.  It is against this order  that the present appeal has been filed.

     The  writ petition in which the above order was passed was  listed before the High Court on 24.4.1996.  The counsel appearing  on  behalf of the appellant had sent an  "Illness Slip".   This is not disputed.  It is also not disputed that the  counsel  was ill.  It is further not disputed that  the Chief  Justice  of the Allahabad High Court had granted  the application  of  the appellant’s counsel for adjournment  of his  cases  on  the  ground of his being  ill.   The  court, however,  did not adjourn the case and proceeded to hear and dispose of the writ petition on merits in the absence of the appellant’s  counsel.   The  writ petition, as  pointed  out earlier,  was  ultimately dismissed and when an  application for  recall  of the order dated 24.4.1996 was given, it  was also  rejected  by  the High Court on the  ground  that  the "Illness  Slip"  sent  by the appellant’s  counsel  was  not brought to the notice of the court.  The court also observed that  the  writ  petition has been decided  on  merits  and, therefore, there was no occasion to recall that order.

     Learned  counsel for the appellant has contended  that if  the  mistake was that of the office of the Court in  not bringing to the notice of the court that the counsel for the appellant  had sent an "Illness Slip", the appellant  cannot be made to suffer and in that situation the High Court would retain  its jurisdiction to recall an erroneous order  under its  inherent It is also contended that the High Court while considering  the  writ  petition under Article  226  of  the Constitution  exercises Constitutional powers which are  not fettered  by any constraints and, therefore, even if  merits of  the writ petition were considered in the absence of  the counsel  for  the  appellant, the judgment  passed  on  that basis, can still be recalled.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

     Article 225 of the Constitution provides as under:

     "Jurisdiction  of  existing High Courts -- Subject  to the provisions of this Constitution and to the provisions of any  law  of the appropriate Legislature made by  virtue  of powers  conferred on that Legislature by this  Constitution, the  jurisdiction  of,  and  the law  administered  in,  any existing High Court, and the respective powers of the Judges thereof  in relation to the administration of justice in the Court,  including  any power to make rules of Court  and  to regulate  the  sittings of the Court and of members  thereof sitting  alone  or in Division Courts, shall be the same  as immediately before the commencement of this Constitution :

     [Provided  that any restriction to which the  exercise of  original  jurisdiction  by any of the High  Courts  with respect  to any matter concerning the revenue or  concerning any  act  ordered  or  done in the  collection  thereof  was subject   immediately  before  the   commencement  of   this Constitution  shall no longer apply to the exercise of  such jurisdiction.]"

     This  Article  provides that the jurisdiction  of  the High  Court, the law administered therein and the respective powers  of  Judges  in  relation to  the  administration  of justice  shall  be the same as they were immediately  before the commencement of the Constitution.

     Thus,  the power of the High Court as they were before the  Constitution have been preserved.  One of the powers so preserved  is  the  power  to make rules  of  court  and  to regulate the sitting of the courts.

     Even before the Constitution came into force, the High Court of Allahabad had already made the Rules for regulating its  business  etc.  in the Court.  We would not  trace  the history whether there did exist rules made under Section 108 of the Government of India Act, 1915 or under the Government of  India  Act, 1935.  The present Allahabad High Court  has been  re-constituted  on amalgamation of the erstwhile  Oudh Chief Court with the High Court in 1948.  In exercise of the power  under Article 225 of the Constitution, the High Court has  framed Rules known as "Rules of Court, 1952" which came into  force  with effect from 15.9.1952.  Chapter VI of  the Rules  provides for hearing and adjournment of cases.   Rule 15 of this Chapter provides as under :

     "Chapter  VI,  Rule  15 - Hearing and  Adjournment  of Cases (Rules of Court):

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

     (1)  The  Chief Justice may on the application  of  an advocate  postpone  his  case for such time as he  may  deem proper,  if  he  is  satisfied  that  such  postponement  is necessary on account of a marriage, death and illness or any other unavoidable or urgent reason.

     (2)   An   application  under   this  Rule  shall   be accompanied  by  a  list of cases desired  to  be  postponed specifying  the occasion or occasions, if any, when any such case  was  previously postponed under this Rule.   It  shall also  indicate  the cases in which the date of  hearing  has been  fixed  by a Bench.  If any omission or  inaccuracy  in this  regard  is  discovered,  the application  (or  if  any advocate whose such application has been allowed is found to have  appeared  before  any of the Benches of the  Court  or before  any  other  Court  or   Tribunal  except  where  the postponement  has  been  ordered specifically on  ground  of appearance  before any particular Court or Tribunal, in  any case,  whether  for  orders,   admission  or  hearing),  the application  for postponement of cases shall stand  rejected automatically."

     The Chief Justice has the exclusive jurisdiction under the  Constitution to distribute the business of court  among various Judges for purposes of disposal of cases.  It is the Chief   Justice  who  constitutes   and  decides  about  the composition  of Division Benches or the Judges who would sit single.  This is part of his administrative functions.  This Rule  gives effect to the administrative powers of the Chief Justice  and  it  enables the Chief Justice to  adjourn  the cases provided an application is given to him on the grounds set  out  in  the  Rule.   This  power  obviously  has  been conferred  upon the Chief Justice to facilitate the  listing of cases.  If a counsel on account of the reasons set out in the  Rule,  which  also includes his illness, is  unable  to attend the court on any particular day or for any particular period  of  time,  he can make an application to  the  Chief Justice  that his cases may not be listed either on that day or  during  the period mentioned in the  application.   Once this  application  is  allowed, it becomes the duty  of  the Registry  to  give effect to this order by not  listing  the cases of that counsel before the court.  If, however, such a case  is  listed  by mistake, the litigant  or  the  counsel cannot  be the sufferer, in accordance with the saying  that "the mistake of the court would not harm a litigant."

     In  the instant case, admittedly, the counsel for  the appellant  had  applied to the Chief Justice for  his  cases being  not listed on account of illness and that application was  allowed and, therefore, it was the duty of the Registry that  the cases in which he was appearing as a counsel  were not  shown  in the cause-list before any court.  This  case, incidentally,  was  shown in the cause-list on  24th  April, 1996  and was disposed of.  It is stated in the  application for  recall  of  that  order that the counsel  had  sent  an ’Illness  Slip’, but this plea has not been accepted by  the court on the ground that the Illness Slip was not brought to the  notice of the court.  It is important to note that  the fact  that  the ’Illness Slip’ was sent to the court is  not disputed.   What is disputed is that this was not brought to the  notice  of the court.  The tradition in  the  Allahabad

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

High Court is that an "Illness Slip" is usually given to the Court  Master or the Bench Secretary of the Court and it  is expected  of  the Bench Secretary that he would bring it  to the  notice of the court either at the beginning of the  day or  at the time when the case is called out and taken up for hearing.   Once the "Illness Slip" is brought to the  notice of the Court, the case, traditionally, is adjourned.

     "Traditions"  of a court are built upon the edifice of cooperation  between  Judges  and lawyers over a  period  of years.   "Traditions",  are doctrines,  customs,  practices, beliefs  and usages which are handed down from generation to generation.   As pointed out earlier, one of the  traditions of  the  Allahabad  High Court, which is now more  than  130 years  old and has seen many generations of lawyers, is that a  case  would  be  adjourned on the  "Illness  Slip"  of  a counsel.   This  and other traditions of the Court bind  the lawyers  and Judges in a sacred relationship of mutual trust and  understanding.   The  adjournment  of  a  case  on  the "Illness  Slip" reflects the court’s respect for the counsel and  its  consciousness that a lawyer or counsel, though  an officer  of the court, is nevertheless a human being who can fall  ill.  It also reflects the faith and trust the  lawyer has  in  the  Court that the Court would,  on  his  "illness slip", adjourn the case.

     It  is contended on behalf of the respondents that the facility  of  adjournment  available to the counsel  on  the ground of "Illness Slip" is a facility which has been abused more  often  than not, so much so that interim  orders  once obtained have notoriously been found to have continued for a long  time merely on the "illness slip" and, therefore,  the facility of adjournment on this basis should be abolished so that  the  litigant whose counsel has fallen ill,  may  make alternative  arrangement and the hearing of the case may not be  affected.   That may be true in rare cases and  in  that situation  the Judges would not act upon the "Illness  Slip" if it is found, from a mere look at the running order sheet, that the facility has been misused or abused.  But, isolated examples  would  not be destructive of the noble  tradition. Moreover,  litigants  in  this country  are  generally  poor (agriculturists)  coming from rural areas or they are  govt. servants  or  workmen in an industrial establishment or  the like and they cannot afford or manage the luxury of engaging another  counsel.   This privilege is available only to  the Central  or  State  Governments who not only  have  Standing Counsel  but  also  standby  counsel  (panel  lawyers)  and, therefore,  only  the  State  counsel  can  dare  plead  for abolition  of adjournment on "Illness Slip", which we hereby reject as absurd and inappropriate.

     In the instant case, the counsel for the appellant had applied  to  the  Chief Justice that on the grounds  of  his illness  he  would  not be able to conduct his cases  for  a particular  period  of time and the application was  allowed for  the period upto 23rd April, 1996.  The case was  listed on  the very next day of the expiry of the leave period.  On that  day, since the counsel was still not well, he sent  an "Illness  Slip" which, unfortunately, was not brought to the notice  of  the  court with the result that the court  on  a consideration  of the merits of the case dismissed the  writ petition.  Since leave of absence to the counsel had already

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 5  

been  granted by the Chief Justice upto 23rd April, 1996, it is  quite understandable that on 24th April, 1996, when  the case  was listed, the counsel was still unwell and could not come to the court and, therefore, could not conduct the case which,  in keeping with the high and noble tradition, should have  been adjourned on the "Illness Slip" of that  counsel. This   having  not  been  done   has  resulted  in   serious miscarriage of justice.

     For  the  reasons stated above, we allow this  appeal, set  aside  the judgment and order dated 24.4.1996 by  which the  writ  petition  was  dimissed on merits,  as  also  the judgment  and order dated 27.8.1997 by which the application for  recall of that order was rejected.  We remand the  case again  to  the High Court for a fresh decision of  the  writ petition  in accordance with law after giving an opportunity of hearing to the counsel for the parties.  There will be no order as to costs.