Court On Its Own Motion vs S K Sharma
2012 Latest Caselaw 6065 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: October 9, 2012

+                           CONT.CAS.(CRL) 2/2012

        In the matter of:

        COURT ON ITS OWN MOTION

        In Re:

        S K SHARMA                                           ..... Respondent
                            Represented by:     None.

        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE MANMOHAN SINGH

PRADEEP NANDRAJOG, J. (Oral)

1. A contempt reference has been referred to this Court in terms of the order dated May 3, 2012 passed by Ms „S‟. ADJ, Delhi, in CS No.430/2009. The order reads as under:-

"This matter was today put up only for further proceedings to await the report of SHO concerned regarding the verification of the death of plaintiff and also to determine who are the LRs of the deceased plaintiff. While this court was considering the matter, Ld. Counsel Mr. S.K.Sharma made scaristic comment at the court and stated that this court issued the court notices/summons to Smt. Meena Harnal, chichi again said bhabi (sister in law) of the plaintiff (Deceased).

Ld. Counsel was asked to refer to the last order and file was offered to him but still the counsel said he has not concerned with the order of the court but it is only that Smt. Neena Harnal (bhabi) received the summon. The said lady was not able to produce any such summon and ld. Counsel for defendant was again asked to go through the last order and was offered the court file. Ld. Counsel

stated that court may not believe the counsel he believes. Seeing some controversy taking place, and the counsel seeming quite agitated, this court deemed it appropriate to Passover the matter to be taken up after lunch. But at this the counsel started expressing much agitation for no good reason and used the word „non-sense‟ for the court. This court want the counsel of using such like offensive and insulting words for court, he said that the undersigned could send a contempt and he was used to facing contempts and also questioned the undersigned as to in how many cases could she managed to get sent even one person to jail. The counsel has used grossly insulting and humiliating language against the court, calling the undersigned in open court as "frustrated with life and taking out the frustration on the lawyers" and also started asking juniors Mr. Rahul Sharma, Mayank Bansal and Sh. Maqsood Hussain "does she behave often like this"?

This court kept warning the counsel of dire consequences of his contemptuous utterances, one after another, then again the counsel has made further serious utterances to the court.

At this stage earlier, counsel has uttered disgraceful comments. At this stage, this court has also told the counsel when he has described the officer as frustrated, it is a very sad and unfortunate day. Ultimately, this court has told the counsel that it may be the other way round i.e. the counsel like the present one cannot digest till now after 9 years of service, the selection of the undersigned who is from the bar, to the judiciary, due to which the undersigned has faced the incident like this and which has however crossed all limits today. The undersigned has to leave the court room ultimately but at the end also the counsel is seen to be smiling and having a laugh.

Let the matter be immediately reported to the Hon‟ble Chief Justice of India and also the Hon‟ble Companion Judges to immediately issue the contempt of court against the said counsel. The present case shall not deserve any opportunity even to be extended to the advocate, in this hopeless case and the advocate should be prepared to meet his fate like a previous leader of the bar Sh. V.C. Mishra.

The hooliganism and bullying is not going to be tolerated by the court for any reason whatsoever. The case is being adjourned only for further proceedings.

At this stage, counsel says that he wants to see the court file. Counsel is directed to follow the rules and is at liberty to move an inspection application. He does not deserve any indulgence from this court after passing all these remarks and committing a gross criminal contempt. The smile on the face of the counsel should not be lasting for long lest the faith of the judicial officer is lost from the judiciary and from the judicial system.

Let the matter be reported to the media as well. Court is being adjourned as this court cannot continue with the proceedings any further. The counsel however, does not leave and further gives comments leading up to the conversation. (as further contained in the mobile phone recording, not possible to reproduce herein verbatim. The mobile phone/audio-video recording shall be produced as and when called for by the Hon‟ble High Court).

Put up for further proceedings on 01.06.2012."

2. Prima facie on a perusal of the order in question, one may rush to a conclusion that case is made out to issue notice to Sh.S.K.Sharma, the advocate concerned, but we are not inclined to do so.

3. But must comment upon the order where the Judge writes that the matter should be reported immediately to the Hon‟ble Chief Justice of India and also the Hon‟ble Companion Judges to immediately issue contempt notice and further record that the advocate does not deserve even an opportunity to be heard as his case is hopeless. We are surprised that in bold print the learned Judge has written that the matter be reported to the media as well and that the learned Judge has recorded on her mobile phone the conversation with the lawyer.

4. We do not expect learned Judges to be carrying their mobile phones with them when sitting on the dais, much less using the mobile phones to

record either audio or video recordings.

5. Our reason for not proceeding against the counsel.

6. While discharging judicial functions, it is expected from the learned Judges to maintain utmost decorum and not conduct proceedings in a manner which are provocative. As the Master of the Court, a Judge must make every endeavour to defuse a tense situation and not enter into verbal heated dialogues. Further, procedure prescribed by law should be followed by a Judge, and in relation to a civil trial, the one prescribed by the Code of Civil Procedure. No Judge can prescribe a procedure of his/her own.

7. We note that the learned Judge was seized of a plaint filed by one Inder Raj Harnal in which he had impleaded his son Yogesh Harnal as defendant No.1 and his i.e. Inder Raj Harnal‟s wife Swaran Lata Harnal as defendant No.2. He was seeking a decree for possession of half portion of the second floor and the terrace above of property bearing Municipal No.S- 22, Rajouri Garden, New Delhi.

8. Inder Raj Harnal pleaded that property ad-measuring 200 sq.yd. was purchased by his mother late Smt.Inder Kaur under a registered sale deed and during the life time of his parents, the property then consisting of a single storeyed building, was partitioned amongst the two children of late Smt.Inder Kaur and in this manner Inder Raj Harnal became owner of 100 sq.yd. land. He further pleaded that with his own resources he constructed a first floor and second floor above the existing ground floor on the 100 sq.yd. plot.

9. He pleaded in paragraph 9 that apart from defendant No.1, two daughters named Roma and Neelam were born during his wedlock with defendant No.2; that the daughters have since settled in Australia with their families. He proceeds then to make averments that his son, defendant No.1,

became wayward and he threw his son out of the house but the mother i.e. defendant No.2 wanted the son to return. He objected. Mother and son conspired and gave effect to the conspiracy when the two broke into the second floor of the property on 25-26 July, 2009.

10. In a joint written statement filed by mother and the son, the suit was resisted pleading that it was a case of family discord which ensued when defendant No.1 had a love marriage and that with the intervention of close relations an oral partition was effected in August 2005 as per which the entire second floor with the terrace above and a room thereon besides a shop on the ground floor was assigned to the share of defendant No.1.

11. On the pleadings of the parties issues were settled and matter proceeded to trial. Inder Raj Harnal examined himself as his witness and defence evidence commenced.

12. The mother and son examined Roma Harnal as their witness who deposed to an oral partition having taken place.

13. Till now everything was fine and the suit was proceeding its usual journey when order dated August 04, 2011 was passed by the learned Judge which reads as under:-

"Today it is being informed by the counsel for defendant that the plaintiff namely, Inder Raj Harnal has passed away on 29.06.2011. Original Death Certificate is being filed today. Same be taken on record. As such the plaintiff is to be take all the necessary steps and the case is being adjourned for further proceedings. Defendant No.1 submits that there are four LRs i.e. Son and widow, already arranged as D1 and D2 and two married sisters namely, Neelam Harnal and Roma Harnal. Counsel for plaintiff is directed to take necessary steps.

List for further proceeding on 31.10.2011."

14. Now, the learned Judge ought not to have directed learned counsel for the plaintiff to take necessary steps inasmuch as with the death of the plaintiff, the vakalatnama issued in favour of the counsel lapsed. The learned Judge could have only and simply adjourned the matter so that in the meanwhile any person claiming to be the legal representative of the plaintiff could move an application to be impleaded as the plaintiff.

15. On the next date of hearing i.e. October 31, 2011 none appeared for the plaintiff or the defendants and accordingly the learned Judge adjourned the matter to January 25, 2012. The order of said date reads as under:-

"Present: None for the LRs of the plaintiff stated to have already expired.

Ld.counsel for defendants No.1 and 2 along with defendant No.1

Ld.counsel making the same submission as already recorded. Ld. counsel Shri Maqsood Husain along with Sh.Ashish Gumbain are submitting that no steps had been taken by any of the LRs, the suit should abate.

However, the defendant No.1 is directed to file his affidavit firstly on the address of the two LRs i.e. Roma Harnal and Neelam Harnal and also state whether there are any other LRs or not. Affidavit be filed within one week and matter will come up for further directions subject to that on 04.02.2012."

16. Now, in the plaint itself it was pleaded by Inder Raj Harnal that he was married to defendant No.2 and out of the wedlock apart from defendant No.1 two daughters named Roma and Neelam were born. (Refer para 9 of the plaint). This information was given by counsel for the defendants to the learned Judge, as recorded in the order dated August 04, 2011 and was

repeated as recorded on January 25, 2012.

17. The insistence by the learned Judge, under the circumstances that affidavit should be filed is closing as aforesaid, would probably irritate any counsel. This appears to have happened in the instant case and the further trigger to the flare up was the order recorded by the learned Judge on February 04, 2012. The order reads as under:-

"Matter taken up for further orders. Since, the suit for possession and recovery of damages for use and occupation of a property at Rajouri Garden, New Delhi had been filed by Sh. Inder Raj Harnal and who was the sole plaintiff and since the information about his death was furnished by counsel for defendant No.1 himself. It is noted that defendant No.1 & 2 are the son and daughter-in- law of the plaintiff from whom possession and damages have been sought.

No doubt, none has been appearing thereafter on behalf of the plaintiff since then. Defendant No.1 has submitted that there are 4 LRs of the deceased Sh. Inder Raj Harnal namely defendant No.1 & 2 already arrayed as defendants and besides two married sisters (of the defendant No.1) i.e. daughters of deceased, namely Neelam Harnal and Roma Harnal. The status of case remains that none appeared thereafter and not even the counsel who was representing the plaintiff. In this backdrop it was submitted by Ld. Counsel for defendant No.1 & 2 along with defendant No.1 that suit should abate since no steps have been taken by any of the LRs.

Since there has been no submission made by counsel for the plaintiff regarding the death of the plaintiff and about his LRs and the information has come only from the defendants or their counsel, the factum of death has not been verified.

Put up for verification through the SHO, P.S. Rajouri Garden who is directed to visit the spot i.e. S-22, First Floor, Rajouri Garden, New Delhi and verify about the death of Sh. Inder Raj Harnal and to inquire from the neighbours about the death of Sh. Inder Raj Harnal and

record their statements and also to obtain his death certificate in original and to file the same along with the list of the LRs (Widow, sons and daughters) of Sh. Inder Raj Harnal, in case he is found to have expired.

Since, the question is of abatement of suit; without ascertaining the factum of death of plaintiff, this Court cannot proceed further.

Order 22 Rule 10(A) CPC specifies that whenever a pleader appearing for a party to a suit, comes to know about the death of that party, he shall inform the court about it and the court thereupon give notice of such death to the other party and for this purpose, the contract between pleader and the deceased party shall be deemed to subsist.

As such, let court notice be also issued to the counsel who was representing the plaintiff namely Sh. Anand Maheshwari as per the address as per vakalatnama.

In the meantime, court notice be also issued to Mrs. Roma Harnal and Neelam Harnal subject to furnishing of their addresses. No PF is required.

Put up only for report on 16.04.2012.

Copy of this order be sent to the SHO as well as to the counsel of the plaintiff. SHO would be served through DCP concerned."

18. The order reflects an obstinate stand adopted by the learned Judge ignoring that the original death certificate issued by the Municipal Corporation of Delhi recording death of Inder Raj Harnal on June 29, 2011 had already been filed and same being recorded in the order dated August 04, 2011. Further, nobody had been appearing for the plaintiff and this was sufficient for the suit to be dismissed in default of appearance, if the Judge had any doubts about the authenticity of the death certificate filed by the defendants.

19. We see no reason why the SHO PS Rajouri Garden was directed to make a personal visit to the house and cause an inquiry to be made and

submit a report whether the plaintiff had died and also inform the Court as to who were the legal heirs of the deceased plaintiff in case it was found that the plaintiff had died.

20. In a civil trial, pertaining to a controversy of a party having died the Code of Civil Procedure does not permit the Court to direct the police to make investigations and submit a report.

21. Further, law does not enjoin upon a Court to ensure that the legal heirs of a deceased party are brought on record. It is for the legal heirs to take the necessary steps. The learned Judge has referred to Rule 10A of Order XXII of the Code of Civil Procedure to justify the order passed. We note said provision. It reads as under:-

"10A. Duty of pleader to communicate to Court death of a party.-

Whenever a pleader appearing for a party to the suit comes to know of the death of that party, he shall inform the Court about it, and the Court shall thereupon give notice of such death to the other party, and, for this purpose, the contract between the pleader and the deceased party shall be deemed to subsist."

22. Suffice would it be to state that the mandate of the aforesaid rule enjoins the pleader appearing for a party to the suit, if he comes to know the death of that party, to inform the Court and the Court has thereupon to give notice of such death to the other party. The matter rests at that. Now, the responsibility of the counsel to give information is pertaining to his client and not the opposite party. This is evident from the following : „Whenever a pleader appearing for a party'... „know of the death of that party'.

23. Besides, law does not enjoy upon the Judge to drive to the hilt the legal heirs being brought on record.

24. Order dated January 25, 2012 and February 4, 2012 are prima facie

indicative of the fact, and if we may with apology use the expression, a stubborn attitude of the Court to follow a procedure which possibly would irritate not only the opposite party but even the counsel, who see a futile exercise being perpetuate.

25. To send police to somebody house is no joke. Everybody has a right to privacy and this would include no prying in the neighbourhood by the police pertaining to the death of a family member and his successors in interest; save and except it is a case of unnatural death and inquest proceedings so require. It would certainly be an irritant if Court would compel parties to file affidavits, as was directed vide order dated January 25, 2012, if law does not permit the Court to do so and the situation does not so warrant. No reasons have been stated in the order dated January 25, 2012 as to why the Court directed defendant No.1 to file affidavit disclosing therein whether apart from Roma, Neelam and the defendants there were any other legal representatives of the deceased plaintiff. The Court had the plaint before it wherein the deceased had pleaded that apart from his wife three children i.e. defendant No.1, Roma and Neelam were born out of the wedlock.

26. Order dated February 4, 2012, is again tainted on account of the fact that nobody was appearing for the plaintiff and his wife and son had not only informed the Court that the plaintiff had died but had also filed the original death certificate which they had obtained from the competent authority i..e the Municipal Corporation of Delhi. No person was forthcoming by seeking to be substituted as the legal heir of the deceased plaintiff. The plaintiff had died on June 29, 2011 and 90 days period within which substitution had to be sought had expired by February 4, 2012 and even the further 60 days period within which an application could be filed praying that abatement be

set aside had also expired. As per law, the suit automatically stood abated when 90 days expired from the date of death of the plaintiff and within which time nobody sought substitution.

27. We just do not know why did the learned Judge insist on flogging a dead horse. What was so suspicious in the death certificate filed by the defendants, which warranted an inquiry? The orders bring out none.

28. Assuming that the learned counsel spoke something which was found offending by the Court, but we cannot ignore the fact that the trigger was pulled by the Court.

29. This is our reason not to issue any show cause notice to the counsel concerned for the reason unnecessary dart requiring the same to be washed n public would surface and probably the end of the said proceedings would be the same as today.

30. But we need to speak a little more.

31. On an application filed for the suit to be transferred, we find that the suit was transferred to another learned Judge, who has also proceeded ahead mindlessly. The learned Judge has taken cognizance of an application under Order 1 Rule 10 CPC filed by defendant No.1 to be transposed as a plaintiff and has issued notice thereof to defendant No.2.

32. The instant suit is not seeking partition of joint property. On the allegation by the father that his son i.e. defendant No.1 has trespassed into the suit property with the connivance of his mother i.e. defendant No.2, decree for possession has been prayed for.

33. It was defendant No.1 whose acts were alleged to be illegal. What would he do as a plaintiff? Against whom would he seek a decree if he is transposed as a plaintiff.

34. Since no person has come forward to seek substitution and further

noting the fact that the deceased plaintiff was survived by his wife, son and two daughters and the fact that the wife and son, impleaded as defendants, have predicated a stand that under an oral family settlement the suit property was assigned to the son and one daughter : Roma has appeared as a witness for the defendants and on oath has supported the defence, the position would be that three out of the four legal heirs are united in defence and the fourth legal heir who is settled in Australia has evinced no interest to proceed ahead with the litigation initiated by her father. The pleadings ex facie show that a matrimonial discord between the husband and the wife embraced the children. With the death of one spouse everything came to an end.

35. We hope that the learned successor Judge would put the matter to rest and terminate the proceedings inasmuch as the suit stood awaited on expiry of 90 days of the death of the plaintiff and the unexplained application filed by defendant No.1 seeking transposition is ill-conceived.

36. The matter is closed.

37. Copy of this order be placed on the file of the Suit and the suit record be returned forthwith.

(PRADEEP NANDRAJOG) JUDGE

(MANMOHAN SINGH) JUDGE OCTOBER 09, 2012 jk