Delhi High Court
Veena Gupta vs Bajaj Allianz Life Insurance Co. ... on 30 October, 2019
$~29
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 30th October, 2019
+ CM (M) 1555/2019
VEENA GUPTA ..... Petitioner
Through: Ms. Neha Garg, Advocate.
(M:9911536363)
versus
BAJAJ ALLIANZ LIFE INSURANCE CO. LTD. ..... Respondent
Through: None.
CORAM:
JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)
CM APPL. 47107/2019 (exemption)
1. Allowed, subject to all just exceptions. The application is disposed
of.
CM (M) 1555/2019
2. The Petitioner challenges the order dated 17th September, 2019 by
which, according to ld. counsel for the Petitioner, costs of Rs.4,000/- has
been imposed upon the Petitioner/Plaintiff (hereinafter the „Plaintiff‟)
without any basis or ground. She submits that on the said date, there was no
default by the Plaintiff, who had in fact, entered appearance in the morning
and the process server‟s statement was also recorded. She further submits
that the matter was put up at 2:30 PM for passing of appropriate orders and
the impugned order was passed. However, the counsel for the Plaintiff
appeared at 2:45 PM and then, he was appraised of the order. Thus, there
was no reason assigned for imposing the costs.
3. A perusal of the order sheets in the suit shows that a fresh suit for
recovery was received by the Court on 15th December, 2018 and the
summons were issued for settlement of issues. The process server was
directed to appear for recording of the statement as the service report
showed that the Defendant had been served and there was no appearance.
Since the process server did not appear, on 5th July, 2019, bailable warrants
were issued against the process server. Then on 17 th September, 2019 in the
morning the statement of the process server was recorded at which time Ms.
Deepa Maurya‟s appearance was recorded as the proxy counsel for the
Plaintiff. After recording the statement of the process server, the matter was
put up at 2:30 PM and thereafter the impugned order was passed, which
reads as under:
"CS No. 1658/2018
Veena Gupta Vs. Bajaj Allianz Life Insurance
17.09.2019
Present: Ms. Deepa Maurya. Ld. Proxy
counsel for plaintiff.
None for defendant.
Sh. Sandeep Kumar, Process Server is also
present.
Perused the file.
Statement of the process server has been
recorded separately in respect of service of
defendant.
Be awaited. Put up at 02:30 p.m.
(AjayNagar)
Commercial Civil Judge (W)
THC/Delhi.17.09.19.
At 2:30 p.m.
Present: None despite repeated calls.
Perused the file which shows that none
appeared on behalf of the defendant despite service
of summons. Statement of the process server has
already been recorded in the morning session in
respect to service. As such, the defendant is
proceeded Ex-parte.
It was the duty of the plaintiff to appear in the
post lunch session also but none has appeared on
behalf of the plaintiff. Hence, a costs of Rs. 4,000/- is
imposed upon the plaintiff to be deposited with the
DLSA and receipt thereof be filed on the next date of
hearing.
Put up for ex-parte PE on 19.10.2019."
4. Upon a query by the Court, ld. counsel clarifies that Ms. Deepa
Maurya was a junior counsel of Mr. O. P. Gupta, Advocate, who was ready
to assist the Court and was aware of the case.
5. A perusal of the order sheets shows that the Defendant, after service,
has been proceeded ex-parte and on the date when the matter was taken up
i.e. on 17th September, 2019, the counsel for the Plaintiff had put in
appearance. Thus, the reasons for imposing of Rs.4,000/- as costs is not
decipherable from the order.
6. Further, it is noticed that in the District Courts, junior counsels, who
appear from the chambers of the counsels who file vakalatnamas, are
reflected as "Proxy Counsel". From this, it is not clear as to whether the
junior counsels, who appear, are ready to assist the Court or not. The term
"Proxy Counsel" ought to be used only when the counsels, who appear, are
not able to assist the Court in the matter or are merely seeking an
adjournment. Junior counsels, who work in the filing counsel‟s chamber,
and are aware of the facts and assist the court, ought not to be described as
proxy counsels. In the practice of law, courts have a duty to encourage
junior counsels who may not have filed vakalatnamas and ought to hear
them if they are ready to assist the court. They cannot be simply treated as
proxy counsels, as such a treatment, is not only discouraging to such junior
advocates but also creates delays in the dispensation of justice. When junior
counsels appearing before the court are prepared and are ready to assist, they
ought to be heard and effective orders can be passed. Filing counsel or the
counsel in whose favour the client has given the vakalatnama ought to
encourage junior advocates and counsels to make submissions and argue
matters. Of course, there is a word of caution. There are some orders such as
withdrawal of a suit, recordal of settlement in a suit, etc., which essentially
require the filing counsel to be present. Except in such situations, court
proceedings can continue with the appearance of junior counsels so long as
they have the necessary express/implied permission to make submissions
from their seniors. When junior counsels working in the chambers of filing
counsels appear and assist the court, instead of describing them as `proxy
counsels‟ alternative terminology such as "_____, Advocate appearing for
Ld. Counsel for the Plaintiff/Defendant" can be adopted. Only in case a
junior or other counsel who is completely unrelated and/or unprepared in the
case, the terminology of „proxy counsel‟ can to be used. This would also
enable junior counsels to ensure that they are not merely taking passovers
and adjournments but also get prepared in the matters and are ready to make
submissions.
7. In the present case, it is also submitted by ld. counsel for the Plaintiff
that after the passing of the impugned order, on 19th October, 2019 again,
the matter was listed in the morning. At 11:34 AM, the order sheet records
that the previous costs are not deposited. Again at 12:32 PM it is recorded
that the previous costs are not deposited. The same is repeated at 2:35 PM
and finally, Rs.3,000/- is again directed to be deposited as costs. She submits
that this was despite the fact that the Court was informed about the filing of
the present petition.
8. The order sheets placed on record as also the order dated 19th October,
2019 do not show any valid reason for imposition of costs in this manner
when the junior counsel was present. The junior counsel also got the
statement of the process server recorded. Thereafter the Defendant has been
proceeded ex-parte and now the matter is to proceed with the Plaintiff‟s
evidence, if required, in accordance with law.
9. Having regard to the facts and circumstances set out above, the
appearance of the junior counsel for the Plaintiff is considered sufficient
appearance on behalf of the Plaintiff. The costs imposed by the impugned
order are, accordingly, set aside.
10. The petition is allowed. Copy of this order be sent to the Court of
Commercial Civil Judge (W), Tis Hazari Courts, Delhi.
PRATHIBA M. SINGH
JUDGE
OCTOBER 30, 2019/dk
