Associated Engineering ... vs Shri Inder Mohan Kohli
1999 Latest Caselaw 1155 Del

ORDER

Cyriac Joseph, J.

1. The petitioner is the defendant in Suit No. 674/96 titled Shri Inder Mohan Kohli Vs. M/s. Associated Engineering Industries, which is pending in the Court of Shri S.N. Dhingra, Additional District Judge, Delhi. The respondent herein is the plaintiff in the suit.

2. According to the petitioner the suit was fixed on 20th March, 1998 for the evidence of the defendant. Since the parties were negotiating for compromise, the defendant's evidence could not be recorded and the case was adjourned to 15th July, 1998 for compromise as well as for defendant's evidence. In view of a decision of the Delhi Bar Association to boycott the court of Shri S.N. Dhingra, Additional District Judge, the counsel for the defendant did not come to the court on 15th July, 1998 and the defendant could not get the assistance of his counsel for recording evidence. Hence Shri Rajeev Garg, partner of the defendant firm appeared in person and sought adjournment of the case. However, the learned Additional District Judge held that the absence of the counsel due to the decision of the Delhi Bar Association to boycott the court was not a ground for adjournment of the case. Consequently the defendant's evidence was closed and the case was adjourned to 20th July, 1998 for arguments. Later, the defendant filed an application dated 17th July, 1998 praying that the order dated 15th July, 1998 may be recalled and the defendant may be allowed to appear in the witness box to defend his case. In the said application the defendant pointed out that on 15th July, 1998 the defendant had appeared in person and had requested for adjournment of the case since lawyers were abstaining from appearing in the Court of Shri S.N. Dhingra, Additional District Judge in response to a decision of the Bar Association. The defendant also stated that since the lawyers were obtraining from appearing in the court and since the defendant did not have any knowledge of law, the only alternative left with the defendant was to lead his evidence with the assistance of the Court and therefore the defendant was filing the application. The said application dated 17th July, 1998 was dismissed by the learned Additional District Judge on 20th July, 1998 observing that he found no force in the application. On 20th July, 1998 the plaintiff had filed written arguments but no arguments were addressed or filed by the defendant and the case stood adjourned to 28th July, 1998 for orders. Aggrieved by the above mentioned orders dated 15th July, 1998 and 20th July, 1998 passed by the learned Additional District Judge the petitioner has filed this revision petition under Section 115 of the Civil Procedure Code. The petitioner prays for a further opportunity to lead evidence in the case in the interest of justice. As per the interim orders passed by this Court further proceedings in Suit No. 764/96 stand stayed.

3. I heard the arguments of the learned counsel for the petitioner and also the learned counsel for the respondent. Learned counsel for the respondent did not seriously oppose the prayer of the petitioner and he suggested that appropriate orders could be passed by this Court in the interest of justice.

4. I have no doubt that there was no justification for the absence of the defendant's counsel on 15th July, 1998. The decision of the Bar Association to boycott and court of the particular Presiding Officer was not sufficient or valid justification for the counsel to abstain from the Court as long, as he held the vakalat of the defendant. If the counsel felt that he was obliged to abstain from the Court on account of the decision of the Bar Association he ought to have relinquished the vakalat and withdrawn from the case so that the defendant could have made alternate arrangements. There is no averment that the counsel for the defendant had done so. Therefore, by abstaining from the court on 15th July, 1998 the counsel for the defendant committed a breach of his professional duty. In this context reference may be made to the following observations of the Hon'ble Supreme Court in Mahabir Prasad Singh Vs. M/s. Jacks Aviation Private Ltd. :-

"16. 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.

17. A three-Judge Bench of this Court has reminded members of the legal profession in Lt. Col. S.J. Chaudhary Vs. State (Delhi Administration) 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."

"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."

(Warvelle's Legal Ethics at p. 182)

18. 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."

Hence I am of the view that the learned Additional District Judge was fully justified in refusing to adjourn the case on the ground that the counsel had not come due to the boycott of the court.

5. But when the defendant filed the application dated 17th July, 1998 offering to lead his evidence with the assistance of the Court and praying to allow him to appear in the witness box to defend his case, the learned Additional District Judge ought to have allowed the said application in the interest of justice. On 15th July, 1998 the counsel had not turned up and the helpless defendant could only seek adjournment of the case. When the court made it clear that the boycott of the court by the advocates was not sufficient ground for adjournment and that the Court was not prepared to wait till the boycott was over, the defendant immediately filed the application seeking recall of the order dated 15.7.1998 and also seeking permission to appear in the witness box to defend his case. The said application was filed before the next date fixed in the case. It was obvious that the defendant himself was not boycotting the court and that he was prepared to participate in the proceedings. In such circumstances the learned Additional District Judge ought to have remembered that a party could not be made to suffer for the indiscretion or fault or unprofessional and unethical conduct of the counsel. The learned Additional District Judge ought to have noted that no prejudice or injustice would have been caused to anybody even if the application was allowed and the defendant was permitted to appear in the witness box on the next date fixed in the case. The plaintiff could have been compensated for the inconvenience by directing the defendant to pay adequate cost to the plaintiff. Hence I am of the view that the learned Additional District Judge erred in dismissing the defendant's application dated 17th July, 1998 and that the said dismissal caused serious miscarriage of justice. The learned Additional District Judge had the jurisdiction to allow the said application in order to secure the ends of justice but be refused to exercise the said jurisdiction without any justifiable reason. If the orders dated 15.7.1998 and 20.7.1998 of the learned Additional District Judge are allowed to stand, there will be failure of justice and irreparable injury will be caused to the defendant in the suit.

6. Hence the impugned order dated 20th July, 1998 of the learned Additional District Judge in Suit No. 764/96 is hereby set aside. The application dated 17th July, 1998 of the defendant (petitioner herein) stands allowed subject to payment of cost Rs. 3000/- by the petitioner to the respondent herein. Consequently the impugned order dated 15th July, 1998 of the learned Additional District Judge stands recalled and the learned Additional District Judge is directed to give one more opportunity to the defendant to lead his evidence. It is made clear that the defendant will be entitled to be assisted by his counsel, if available. The parties are directed to appear before the learned Additional District Judge on 10th December, 1999 for further proceedings in the Suit.

7. The revision petition stands disposed of in the above terms.