Delhi High Court
Court On Its Own Motion vs Sohan Singh on 27 August, 2009
Author: Shiv Narayan Dhingra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: August 21, 2009
Date of Order: August 27, 2009
+CM 832/2009 in CCP 549/08
%
27.08.2009
COURT ON ITS OWN MOTION .... Petitioner
Through : Mr.Sudhir K. Makkar with
Mr. Ankit Malhotra, Advs.
Versus
SOHAN SINGH .... Respondent
Through: Mr.P.V.Kapoor, Sr. Adv. with
Mr.Hrishikesh Baruah &
Ms. Chetna Gulati, Advs.
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether judgment should be reported in Digest? Yes
ORDER
1. This application has been made by the applicant, Sh.Sohan Singh
under Section 151 CPC with a prayer of modification/withdrawing the order
dated 11.12.2008, and recalling the directions given to the applicant and
other officials of the society to vacate the premises in the possession and
stay/extend time period of working of the order dated 11.12.2008 till
disposal of the application and discharge the contempt against the
applicant by dismissing the Contempt Case No. 549/08.
2. On 11.12.2008, the proceedings in the Contempt Case (C)
No.549/08 were going on in the Court. While the arguments were going
on, Senior Counsel Shri K.T.S. Tulsi appearing for Sh.Sohan Singh
submitted to the Court that Sohan Singh shall be vacating the premises in
his occupation within two weeks. Since it was the property of the society,
he shall hand over the possession of the premises to the receiver within a
period of 2 weeks from the date of order. This Court also observed that
other officials of the society in occupation of the property were bound to
surrender the same to the receiver appointed by this Court to manage the
property. The Court made it clear that the officials of the society can
remain in occupation of the premises only with permission of the receiver,
on terms and conditions regarding user charges that may be specified by
the receiver. It is contended by the applicant that senior counsel for the
applicant Sh.K.T.S.Tulsi made statement in the Court regarding handing
over of possession of the property without his instructions. He was not
required to give such a concession in the Court nor there was an occasion
to give concession. The application is accompanied by an affidavit of
instructing counsel, Mr. Hrishikesh Baruah who has stated that he was
present in the Court along with senior counsel Sh.K.T.S.Tulsi during the
hearing of the case. The senior counsel, Sh. K.T.S. Tulsi was engaged and
briefed by him in the matter and senior counsel was never instructed by
him to make a statement/submission/concession regarding handing over
of possession of the property and instructions were given to the senior
counsel only limited to the scope of Contempt Petition.
3. Counsel for the petitioner argued that the instructing counsel was a
responsible member of the bar and since he has filed his affidavit, the
same should be given serious consideration and it should be believed that
senior counsel (as if Senior Counsel was an irresponsible member of the
bar) made concession without instructions and the order should be
modified.
4. On the other hand counsel for Indian Potash Research Institute of
India, who was appointed as an amicus curiae to assist the Court in
contempt matter, since the contempt matter was initiated by the Court on
the report of the receiver on its own motion, submitted that on the date of
hearing the contemnor was present in person in the Court along with his
son, who is also an Advocate, as well as with instructing counsel, Mr.
Baruah and senior counsel, Mr K.T.S. Tulsi. He submitted that instructions
were taken by the senior counsel in the Court itself during the continuation
of the hearing.
5. The order dated 11.12.2008 was passed on the basis of submissions
of senior counsel, Mr.K.T.S.Tulsi, who in presence of his client, his clients
son and instructing counsel informed the Court the intention of his client.
This application for recalling the order has been made by the applicant on
17th January, 2009, i.e., after about a month of passing of the order. It is
not disputed that the contemnor along with his son, who is also an
Advocate, was present in the Court at the time when the matter was being
argued by senior counsel, Mr. K.T.S.Tulsi. It is only during arguments on
contempt petition that Mr. K.T.S.Tulsi made a statement in the Court that
his client would vacate the premises of society in two weeks. It cannot be
believed that a senior counsel would make a statement in the Court in
presence of his client without instructions from the client. If the statement
was made by Mr. Tulsi without instructions of his client, his client could
have immediately told the Court that this statement should not be taken
on record because he had no intention of vacating the premises and he
had not given any instructions to his counsel to make such statement on
his behalf to the Court. It may be that at the time when Mr. K.T.S.Tulsi
was briefed by Mr. Baruah in his chamber, Mr. Tulsi was not given
instructions to make such a statement. But it is not unknown that several
times during arguments the counsels, on instructions from their clients,
make statements in the Court. When clients are not present, the counsels
normally seek time to take instructions from client but when client is
present in the Court, the instructions are taken then and there in the Court
itself and the statement is made in the Court. Moreover, in this case
Sh.Sohan Singh, a well educated person, Chairman of a society was being
assisted by his own son, an Advocate, Mr. Baruah, another Advocate and
Mr. K.T.S.Tulsi, senior Advocate. If he had not given instructions to his
counsel for making statement on his behalf in the Court, he was at liberty
to repudiate this statement either himself or through his son or through
his instructing counsel immediately either in the Court itself or he could
have filed an affidavit in the Court that the statement was made without
his instructions on the same day. Filing an application after more than a
month to withdraw the statement made in the Court by the counsel seems
to be a part of the strategy/tactics adopted by the applicant to prolong the
matter.
6. It has become a normal practice to give undertakings in the Court
and then to deny them, defy them and not to act on them and then try to
wriggle out of the undertakings by adopting one or the other method.
Giving undertakings has become another strategy for gaining time. The
statements may be made in the Court are losing their sanctity because of
these kind of tactics being adopted and supported by the bar. It is most
unfortunate that senior counsels are allowing themselves to be used in
this manner and are prepared to argue that earlier senior counsel acted
without instructions and the Court should, on the weightage of an affidavit
of instructing counsel, discard the submissions of the earlier senior
counsel and believe the present senior counsel. What if the next Senior
Counsel urges to the Court that second Senior Counsel acted without
instructions and latest and final was the third counsel. If an undertaking is
given to the Court that the premises would be vacated in a particular time,
by filing such an applications or affidavit of Advocate and bringing another
senior counsel to argue such applications, the undertakings are practically
made ineffective and the time initially taken is got enlarged by mere
pendency of such applications. I consider that these kind of applications
which try to demean and degrade the proceedings in the Court and where
the Advocates are changed only with the motive of taking advantage of
the procedural technicalities of the Court should be deprecated. I find no
force in the application. The application is hereby dismissed with the costs
of Rs.25,000/- to be deposited in Prime Minister's Relief Fund within 30
days, failing which Registry to recover the cost by attachment of movable
assets.
August 27, 2009 SHIV NARAYAN DHINGRA J.
ak
