Sepoy (Barber) Ranjit Kumar vs Union Of India & Ors.
2011 Latest Caselaw 6054 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                CM No.19152/2011 in WP(C) No.4551/2011

%                        Date of Decision: 12.12.2011

Sepoy (Barber) Ranjit Kumar                                     .... Petitioner

                      Through Mr.M.A.Ansari, Advocate

                                   Versus

Union of India & Ors.                                        .... Respondents

                      Through Ms.Barkha Babbar, Advocate


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

* CM No.19152/2011

Issue notice to the respondents. Ms.Barkha Babbar, Advocate,

accepts notice and states that the allegations made in the applications

against her are derogatory.

Learned counsel, however, contends that the petitioner/applicant

is seeking expunging of the observation of this Court dated 14th

November, 2011, "This Court deprecates the action of the petitioner's

counsel", therefore, the application be heard and disposed of.

The petitioner/applicant had filed an application seeking

clarification of order dated 11th July, 2011 on 11th November, 2011 and

it was listed before the Court on 14th November, 2011. On 14th

November, 2011, when the application was taken up for hearing,

learned counsel for the respondents, Ms.Barkha Babbar, had brought

to the notice of the Court that advance copy of the application was not

given to her and that the learned counsel for the petitioner is always

indulging in such practice.

On inquiry from learned counsel for the petitioner, it was

disclosed that learned counsel for the petitioner had tried to contact

counsel for the respondents on phone. Since he could not contact her,

therefore, he had given the copy of the application to Sepoy Jitender

Singh. Counsel had stated that Sepoy Jitender Singh usually comes to

the Court and looks after the Army matters, therefore, the copy of the

application seeking direction was given to Sepoy Jitender Singh for

delivery to counsel for the respondents, Ms. Babbar.

The allegation by learned counsel for the petitioner/applicant that

copy was given to Sepoy Jitender Singh was refuted by learned counsel

for the respondents contending that Sepoy Jitender Singh was not

looking after the present case.

The High Court rules contemplate serving the advance copy on

the nominated counsel or if there is no nominated counsel of any of the

party, then on such a party. Since in the present case, the respondents

were represented by learned counsel, Ms.Barkha Babbar, there was no

occasion to serve the advance copy on anyone else but the nominated

counsel who had been appearing in the matter on behalf of the

respondents.

On perusal of the application, being CM.No.18058/2011, it had

also transpired that it had an illegible and undecipherable endorsement

dated 11th November, 2011 on it regarding delivery of advance copy to

someone. In case learned counsel for the respondents was not available

and could not be served for any reasons, the only option left with

learned counsel for the petitioner was to send the advance copy of the

application by post or by courier and to annex the receipt of postal

department or of the courier along with application and to file the same.

The relevant rules regarding service of advance copy does not

contemplate giving copy of the application or the pleadings to any other

person. Learned counsel for the petitioner could not substantiate his

plea that Sepoy Jitender Singh usually comes to the Court and looks

after the Army matters, therefore, the copy was given to the said person.

There was no justification under the rules and in the facts and

circumstances for learned counsel for the petitioner to give the advance

copy of CM No.18058/2011 to alleged Sepoy Jitender Singh. In any

case, from the illegible and un-decipherable endorsement made on the

said application, it could not be ascertained whether any endorsement

was made by the alleged Sepoy Jitender Singh or not.

In these circumstances, this Court had deprecated the action of

learned counsel for the petitioner and had directed him to supply a copy

of the application to the counsel for the respondents and did not take

any further action against learned counsel for the petitioner for non

compliance of rules regarding service of advance copy of the application.

The present application has been filed by the petitioner/applicant

along with an affidavit of learned counsel for the petitioner,

Mr.Mohd.Azam Ansari, contending, inter-alia, that for CM

No.18058/2011, he had tried hard to locate and contact Ms.Barkha

Babbar, learned counsel for the respondents, but she could not be

contacted and therefore, he enquired about Mr.Prabhat. The applicant

has further contended that he saw one Army Jawan and enquired from

him who represented that Mr.Prabhat had not come to the Court as he

was on leave and therefore, he had come in place of Mr.Prabhat. The

said person allegedly disclosed his name as Naik Jitender Singh, and

consequently, the copy of the CM No.18058/2011 was given to Army

Jawan, Naik Jitender Singh. According to the applicant, the learned

counsel had repeatedly reminded Jitender Singh that the matter will

come up for hearing on 14th November, 2011 and asked him to

handover the copy of the application to Ms.Barkha Babbar, counsel for

the respondents.

The applicant has also given the details as to what had transpired

in the case of 5th August, 2011 and 4th November, 2011 and has also

filed the copies of orders dated 5th August, 2011 and 4th August, 2011

in CCP No.586/2011.

The learned counsel for the applicant in the application filed on

behalf of the petitioner seeking expunging the remarks made against

the counsel has also relied on AIR 2007 SC 1546, A.V.Papayya Sastri &

Ors. v. Govt. of A.P. & Ors., holding that when an order is obtained by

fraud by any party then it is a nullity and can be recalled at any stage.

The learned counsel has contended that he fails to comprehend as to

why learned counsel for the respondents could not have moved an

application to recall the order dated 24th June, 2011 which, according

to counsel for the respondents, had been obtained by the petitioner by

fraud.

The applicant has contended that it will be welcomed by him if

any order is got recalled, if it is obtained by fraud. But the counsel for

the respondents should not point out fingers on the counsel for the

petitioner. The averments made by learned counsel for the petitioner in

the application is as under:-

"Even now, she is welcome to resort to that and get that order recalled if is obtained by fraud but for God sake let learned counsel for the respondents not point fingers on the petitioners counsel unnecessarily and before inappropriate forums. She should not forget that after all we both are equally placed both being counsels. She is senior and for that matter petitioner's counsel pays due respects to her but it does not mean that she being a senior has a right to disrespect to the petitioner's counsel which she has been continuously trying to do and finally did it on 14th November, 2011 in the open Court before this Hon'ble Court."

The applicant further contended in para 8 of the application as

under:-

"8. That mala fides and well thought out plan behind the false and misleading submissions of Ms.Barkha Babbar, learned counsel for the respondents on 14th November, 2011 was nothing but to create bad impression of the petitioner's counsel before Your Kind Lordships in which she succeeded also as appears from the order dated 14th November, 2011, relevant portion of which reads as - "This Court deprecates the actions of the petitioner's counsel."

The applicant further contended that his counsel has also learnt

from the reliable sources that Ms.Barkha Babbar, learned counsel for

the respondents, was in possession of a copy of the CM application

No.18058/2011. It was further asserted that the fact that her name did

not appear in the cause list on 14th November, 2011, but still she

appeared in the matter proves the facts that she was in possession of

the CM application No.18058/2011 as it is very difficult (if not

impossible) to remember an old case by case number and once she can

remember an old case by case number then, there is no reason why she

could not have remembered a new case by case number and appeared

on 24th June, 2011 in CWP No.4022/2011 by seeing the cause list.

The other allegations made by the counsel for applicant against

learned counsel for the respondents are as under:-

3. Now before proceeding further, petitioner's counsel would humbly submit that he is not in good terms with the respondents' counsel and he does not see eye to eye with her for a long time and therefore, it was natural on the part of the Ms.Barkha Babbar, learned counsel for the respondents to put the baseless allegations against the petitioner's counsel. This was not the first time that she made such false and baseless allegations against the petitioner's counsel. She raised these baseless allegations previously also on two occasions before this Hon'ble Court on 5th August, 2011 and 4th November, 2011 and on both occasions this Hon'ble Court rejected those allegations about the getting the order changed. Not only that on 4th November, 2011, this Hon'ble Court severely reprimanded respondents' counsel orally for not complying the court order. Therefore, whatever respondent's counsel did on 14th November, 2011 was to wreak out vengeance against the petitioner's counsel. This Hon'ble Court on 4th November, 2011 took a very serious view of the non-compliance of the court order which is apparent from the last sentence of the order of CCP No.586/2011 which reads as under:-

"Needful shall be done within the time sought, failing which the presence of the competent authority, required to take a decision on the statutory appeal of the petitioner, shall have to be ordered."

True copies of this Hon'ble Court order dated 5th August, 2011 and 4th November, 2011 passed in CCP No.586/2011 are annexed herewith as Annexure P-1 & P-2 respectively."

Perusal of the previous orders passed by this Court do not reflect

any of the allegations as has been made by learned counsel for the

petitioner against learned counsel for the respondent, Ms. Barkha

Babbar, Advocate. The allegations made by learned counsel for the

petitioner in the present application are not in good taste and appear to

be an attempt to further justify his own irregular act in allegedly

handing over the advance copy of the application to Jitender Singh who

was allegedly looking after the Army Matters.

The rule for an advance copy contemplates supplying an advance

copy to the counsel of the opposite party or nominated counsel and in

case the counsel is not available to send copy by post or by courier.

Learned counsel for the petitioner/applicant could not create his own

procedure to supply copy to any Army Jawan and in case the Army

Jawan was on leave than to supply the same to another Army Jawan.

This Court had found that even the endorsement on the

application, being CM No.18058/2011, is illegible and un-decipherable.

For these reasons, this Court had observed and deprecated the actions

of the petitioner's counsel.

In the facts and circumstances, the present application seeking

expunging the said remarks against the petitioner's counsel does not

have any merit. It is rather an attempt by the counsel to further justify

his own lapse. While trying to justify his own lapse, the learned counsel

for the petitioner has further made unsubstantiated allegations against

the learned counsel for the respondents which are also not in good taste

as is apparent from the language used against her in the present

application.

In the circumstances, the application seeking expunging of the

remarks made by this Court on 14th November, 2011, "This Court

deprecates the actions of the petitioner's counsel.", merit dismissal. The

application is, therefore, dismissed with a cost of `5,000/- on the

petitioner which will be payable to learned counsel for the respondents.

The application is therefore, dismissed. Cost be paid within two weeks.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

December 12, 2011.

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