Ikm Investors Services Ltd. vs Kiranpal Kapoor
2007 Latest Caselaw 666 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This petition under Section 482 Cr.P.C has been made by the petitioner for setting aside the order dated 17th April, 2006 passed by the Court of Metropolitan Magistrate.

2. Brief facts are that the petitioner filed a complaint under Section 138 of Negotiable Instruments Act and the same was fixed on 17th April, 2006 before the court of Metropolitan Magistrate. On that day the counsel for the petitioner, in whose favor 'vakalatnama', was signed by the petitioner did not appear before the Court on the ground that the advocates were on strike. The learned Court of Metropolitan Magistrate initially called the case in the morning, but when none appeared passed over the case. The case was recalled at 2.25 p.m., none appeared even at 2.25 p.m. and the complaint was dismissed in default.

3. In the petition, the plea taken by the petitioner's counsel is that the advocates were on strike and the advocate of the petitioner thought that attorney of the petitioner would appear in the Court and take adjournment. However, the attorney of the petitioner had left the services of the petitioner around the same time, so he did not appear before the Trial Court and he wrongly instructed the new incumbent about the next date of hearing as 26.7.2006. On 26.7.2006 when the new AR of the petitioner went to Court, he came to know that the case of the petitioner had been dismissed on 17.4.2006.

4. It is obvious that the complaint of the petitioner was dismissed for non-appearance of the petitioner's counsel, who did not appear as he was on strike along with other advocates. An advocate cannot avoid appearing in the court on the ground of strike by Bar and cannot betray his client. In Ex-Capt. Harish Uppal v. Union of India Supreme Court observed as under:

Thus the law is already well settled. It is the duty of every advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that courts are under an obligation to hear and decide cases brought before them and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers, it would amount to scandalising the courts to undermine its authority and thereby the advocates will have committed contempt of court. Lawyers have known, at least since Mahabir Singh's case AIR 1999 SC 287 case that if they participate in a boycott or a strike, their action is ex facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of court/s. Lawyers have also known, at least since Ramon Services 2001 (1) SCC 118 case that the advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.

5. In Society for Common Cause v. Union of India, Supreme Court again had occasion to consider issue of strike of advocates and Supreme Court reiterated the law already laid down in Harish Uppal case (supra) and reminded the obligations of advocates.

6. In Ramon Services Pvt. Ltd. v. Subhash Kapoor and Ors. AIR 2001 SC 207, Supreme Court observed as under:

We put the profession to notice that in future the advocate would also be answerable for the consequence suffered by the party if the non-appearance was solely on the ground of a strike call. It is unjust and inequitable to cause the party alone to suffer for the self imposed dereliction of his advocate. We may further add that the litigant who suffers entirely on account of his advocate's non-appearance in court, he has also the remedy to sue the advocate for damages but that remedy would remain unaffected by the course adopted in this case. Even so, in situations like this, when the court burdens the party with costs for the failure of his advocate to appear, we make it clear that the same court has power to permit the party to realise the costs from the advocate concerned. However, such direction can be passed only after affording an opportunity to the advocate. If he has any justification cause the court can certainly absolve him from such a liability. But the advocate can not get absolved merely on the ground that he did not attend the court as he or his association was on strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claims repugnant to any principle of fair-play and cannone of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate.

7. This Court in B.L. Wadehra v. State (N.C.T. of Delhi) observed that there was no fundamental right either under Article 19 or under Article 21 of the Constitution, which permits or authorises a lawyer to abstain from appearing in Court in a case in which he holds the vakalat for a party in that case.

8. In Ramon Services Pvt. Ltd. v. Subhash Kapoor (supra) Supreme Court also observed:

Though a matter of regret, yet it is a fact, that the Courts in the country have been contributory to the continuance of the strikes on account of their action of sympathhising with the Bar and failing to discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking advocates. I find my self in agreement with the submission of Sh. M.N. Krishnamani, Senior Advocate that the Courts were sympathising with the Bar by not agreeing to dismiss the cases for default of appearance of the striking advocates. I have my reservations with the observations of Thomas, J. that the Courts had not been sympathising with the Bar during the strikes or boycotts. Some Courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the Courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. It is not too late even now for the Courts in the country to rise from the slumber and perform their duties without fear or favor particularly after the judgment of this Court in Mahabir Singh's case AIR 1999 SC 287. In action will surely contribute to the erosion of ethics and values in the legal profession. The defaulting Courts may also be contributory to the contempt of this Court.

9. In Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. , Supreme Court observed as under:

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 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.

10. I consider that in the light of law laid down by Supreme Court and this Court, in a case where complaint is dismissed because of non-appearance of the advocate due to strike, it is the advocate, who should compensate the litigants whose complaint was dismissed due to strike and should pay the entire monetary loss suffered by litigant. An advocate holds a position of trust vis-a-vis his client. If there is breach of trust and loss suffered by the client due to this breach of trust, the client must be compensated by the advocate for the loss suffered due to his negligence or due to his non-appearance in the Court on the ground of strike. Non-appearance of the advocate in the court on the date when case is fixed, on the pretext or ground of strike amounts to breach of faith and trust reposed in the advocate by the client, who engaged him and paid his fees.

11. In Damodardass Agarwal and Ors. v. R. Badrilal and Ors. Andhra Pradesh Court held that an advocate engaged by a litigant has lien over the papers during pendency of a case for payment of his fees. If an advocate has a lien over the papers of his client to recover his fees, his client has a right to recover the loss suffered by him due to negligence of the advocates or due to non-appearance of the advocate. on the ground of strike.

12. I consider that no Court can be a party to the strike of advocates and the court is duty bound to proceed further in the case irrespective of non-appearance of the counsel. The Trial Court rightly passed order dated 17th April, 2006. If the litigant has suffered any loss due to negligence of the advocate or non-appearance of the advocate, the litigant should recover the loss from the advocate.

13. There is no force in this petition. The petition is hereby dismissed. No orders as to cost.