Gujarat High Court
Kachhatiya Karsanbhai Premjibhai vs Mohan Jetha Nakum on 24 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2248 of 2025
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KACHHATIYA KARSANBHAI PREMJIBHAI & ORS.
Versus
MOHAN JETHA NAKUM & ORS.
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Appearance:
ADITYA A CHOKSI(7835) for the Petitioner(s) No. 1,2,2.1,2.2,2.3,2.4
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 24/02/2025
ORAL ORDER
1. The present petition has been filed by the petitioners
under Article 227 of the Constitution of India, seeking
following reliefs : -
"9.A. MAY BE PLEASED TO allow this petition
while exercising the supervisory powers &
jurisdiction U/Article 227 of the Constitution of
India and thereby BE PLEASED TO set aside the
impugned order dated 19.12.2024 passed below
Exhibit 178 in Regular Civil Suit No. 67 of 2010
by the Court of learned Principal Senior Civil
Judge, Devbhoomi Dwarka at Jamkhambhaliya {AT
ANNEXURE-A} and consequently further be pleased to
allow the petitioner - plaintiff to adduce the
oral evidence with respect to document Mark (50/1)
{AT ANNEXURE-D} in the interest of justice.
B. MAY BE PLEASED TO pass an ex-parte ad-interim
relief in terms of stay on further proceedings of
Regular Civil Suit No. 67 of 2010 by the Court of
learned Principal Senior Civil Judge, Devbhoomi
Dwarka at Jamkhambhaliya during the admission,
pendency and till final disposal."
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2. The short facts of the case appears to be that, the
petitioners happen to be the original plaintiffs, filed Regular
Civil Suit No. 67 of 2010, before the Principal Senior Civil
Judge, Devbhoomi Dwarka at Jamkhambhaliya against the
respondents. The oral and documentary evidence led by the
respective parties. The suit is now at the stage of final
arguments. After about six adjournment granted to the
parties, more particularly, the plaintiffs to the oral
submissions, at that stage, an application below Exh. 178 has
been filed, whereby the plaintiffs have sought a relief to
examine the witness in support of the documents which are
produced at Exh. 50 i.e. mark 50/1.
2.1. After hearing the parties and considering the facts
that the suit is at the stage of final arguments and the suit
has been filed in the year 2010, being an old case, request of
the plaintiffs was rejected by the trial Court vide its
impugned order dated 19.12.2024. While passing the
impugned order, the trial Court has observed that the
defendants have orally given their no objection for exhibiting
documents, which are not exhibited, and thereby the trial
Court, while rejecting the impugned application below Exh.
178, ordered for exhibiting the documents produced at Mark
50/1.
2.3 Being aggrieved and dissatisfied with the impugned
order dated 19.12.2024 passed by Principal Senior Civil
Judge, Devbhoomi Dwarka at Jamkhambhaliya below Exh.
178 in Regular Civil Suit No. 67 of 2010, the original
plaintiffs have preferred the present petition.
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3. Learned advocate Mr. Aditya A. Choksi appearing for
the petitioners would submit that the impugned order is
violating of principles of natural justice, inasmuch as, one
opportunity ought to have been given to the plaintiffs to lead
oral evidence in support of the documents which is now
exhibited by the trial Court.
4. Learned advocate Mr. Choksi would submit that
there is no bar under the Code of Civil Procedure, 1908
(hereinafter referred to as 'the CPC'), not to allow the parties
to lead oral evidence, even if closing pursis have been
submitted by the parties.
5. Learned advocate Mr. Choksi would further submit
that while rejecting the impugned application, the trial Court
was required to look into the merits of the matter, rather
saying that the matter is targeted suit/case and it is at the
stage of final arguments.
6. Learned advocate Mr. Choksi would further submit
that right of the plaintiffs should not have been curtailed by
not examined them a witness in support of document so
exhibited by the trial Court.
7. Learned advocate Mr. Choksi in support of his
submissions, has relied upon the decision of the Coordinate
Bench of this Court in the case of Deceased Khimabhai @
Khimjibhai nathubhai Doru and Ors. versus Jam
Khambhaliya Municipality Through Chief Officer &
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Ors. passed in Special Civil Application No. 2640 of
2024 dated 14.06.2024 as well as has also relied upon the
decision of Hon'ble Delhi High Court in the case of Sudir
Engineering Company versus NITCO Roadways Ltd.
reported in 1995 SCC OnLine Del 251. Making the above
submission, learned advocate Mr. Choksi would request this
Court to allow the present petition. No further submissions
have been made.
8. Heard learned advocate Mr. Aditya A. Choksi for the
petitioners at length.
9. Before adverting to the issue involved in the matter,
I would like to remind myself scope and power available to
this Court while exercising its power under Article 227 of the
Constitution of India which is succinctly discussed in
following decisions of Honourable Supreme Court of India.
First one in a case of Sameer Suresh Gupta TR PA Holder
vs. Rahul Kumar Agarwal, reported in 2013 (9) SCC
374, the relevant observation of the aforesaid judgment
reads as under:-
"[6] In our view, the impugned order is liable
to be set aside because while deciding the writ
petition filed by the respondent the learned
Single Judge ignored the limitations of the
High Court's jurisdiction under Article 227 of
the Constitution. The parameters for exercise
of power by the High Court under that Article
were considered by the two Judge Bench of this
Court in Surya Dev Rai v. Ram Chander Rai and
Ors., 2003 6 SCC 675. After considering various
facets of the issue, the two Judge Bench culled
out the following principles:
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(1) Amendment by Act No. 46 of 1999 with
effect from 01-07-2002 in Section 115 of
Code of Civil Procedure cannot and does not
affect in any manner the jurisdiction of
the High Court under Articles 226 and 227
of the Constitution.
(2) Interlocutory orders, passed by the
Courts subordinate to the High Court,
against which remedy of revision has been
excluded by the Code of Civil Procedure
Amendment Act No. 46 of 1999 are
nevertheless open to challenge in, and
continue to be subject to, certiorari and
supervisory jurisdiction of the High Court.
(3) Certiorari, under Article 226 of the
Constitution, is issued for correcting
gross errors of jurisdiction, i.e. when a
subordinate Court is found to have acted
(i) without jurisdiction - by assuming
jurisdiction where there exists none, or
(ii) in excess of its jurisdiction - by
overstepping or crossing the limits of
jurisdiction, or (iii) acting in flagrant
disregard of law or the rules of procedure
or acting in violation of principles of
natural justice where there is no procedure
specified, and thereby occasioning failure
of justice.
(4) Supervisory jurisdiction under Article
227 of the Constitution is exercised for
keeping the subordinate Courts within the
bounds of their jurisdiction. When the
subordinate Court has assumed a
jurisdiction which it does not have or has
failed to exercise a jurisdiction which it
does have or the jurisdiction though
available is being exercised by the Court
in a manner not permitted by law and
failure of justice or grave injustice has
occasioned thereby, the High Court may step
in to exercise its supervisory
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jurisdiction.
(5) Be it a writ of certiorari or the
exercise of supervisory jurisdiction, none
is available to correct mere errors of fact
or of law unless the following requirements
are satisfied: (i) the error is manifest
and apparent on the face of the proceedings
such as when it is based on clear ignorance
or utter disregard of the provisions of
law, and (ii) a grave injustice or gross
failure of justice has occasioned thereby.
(6) A patent error is an error which is
self-evident, i.e. which can be perceived
or demonstrated without involving into any
lengthy or complicated argument or a long-
drawn process of reasoning. Where two
inferences are reasonably possible and the
subordinate Court has chosen to take one
view, the error cannot be called gross or
patent.
(7) The power to issue a writ of certiorari
and the supervisory jurisdiction are to be
exercised sparingly and only in appropriate
cases where the judicial conscience of the
High Court dictates it to act lest a gross
failure of justice or grave injustice
should occasion. Care, caution and
circumspection need to be exercised, when
any of the abovesaid two jurisdictions is
sought to be invoked during the pendency of
any suit or proceedings in a subordinate
Court and the error though calling for
correction is yet capable of being
corrected at the conclusion of the
proceedings in an appeal or revision
preferred there against and entertaining a
petition invoking certiorari or supervisory
jurisdiction of High Court would obstruct
the smooth flow and/or early disposal of
the suit or proceedings. The High Court may
feel inclined to intervene where the error
is such, as, if not corrected at that very
moment, may become incapable of correction
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at a later stage and refusal to intervene
would result in travesty of justice or
where such refusal itself would result in
prolonging of the lis. (
(8) The High Court in exercise of
certiorari or supervisory jurisdiction will
not covert itself into a Court of Appeal
and indulge in re-appreciation or
evaluation of evidence or correct errors in
drawing inferences or correct errors of
mere formal or technical character.
(9) In practice, the parameters for
exercising jurisdiction to issue a writ of
certiorari and those calling for exercise
of supervisory jurisdiction are almost
similar and the width of jurisdiction
exercised by the High Courts in India
unlike English Courts has almost
obliterated the distinction between the two
jurisdictions. While exercising
jurisdiction to issue a writ of certiorari
the High Court may annul or set aside the
act, order or proceedings of the
subordinate Courts but cannot substitute
its own decision in place thereof. In
exercise of supervisory jurisdiction the
High Court may not only give suitable
directions so as to guide the subordinate
Court as to the manner in which it would
act or proceed thereafter or afresh, the
High Court may in appropriate cases itself
make an order in supersession or
substitution of the order of the
subordinate Court as the Court should have
made in the facts and circumstances of the
case."
(Emphasis supplied)
10. The same question was considered by another Bench
in Shalini Shyam Shetty v. Rajendra Shankar Patil
[(2010) 8 SCC 329 : (2010) 3 SCC (Civ) 338] , and it was
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held: (SCC pp. 347-49, para 49)
"(a) A petition under Article 226 of the
Constitution is different from a petition
under Article 227. The mode of exercise of
power by the High Court under these two
articles is also different.
(b) In any event, a petition under Article 227
cannot be called a writ petition. The history
of the conferment of writ jurisdiction on High
Courts is substantially different from the
history of conferment of the power of
superintendence on the High Courts under
Article 227 and have been discussed above.
(c) High Courts cannot, at the drop of a hat,
in exercise of its power of superintendence
under Article 227 of the Constitution,
interfere with the orders of tribunals or
Courts inferior to it. Nor can it, in exercise
of this power, act as a Court of appeal over
the orders of the Court or tribunal
subordinate to it. In cases where an
alternative statutory mode of redressal has
been provided, that would also operate as a
restrain on the exercise of this power by the
High Court.
(d) The parameters of interference by High
Courts in exercise of their power of
superintendence have been repeatedly laid down
by this Court. In this regard the High Court
must be guided by the principles laid down by
the Constitution Bench of this Court in Waryam
Singh [Waryam Singh v. Amarnath, AIR 1954 SC
215] and the principles in Waryam Singh
[Waryam Singh v. Amarnath, AIR 1954 SC 215]
have been repeatedly followed by subsequent
Constitution Benches and various other
decisions of this Court.
(e) According to the ratio in Waryam Singh
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[Waryam Singh v. Amarnath, AIR 1954 SC 215] ,
followed in subsequent cases, the High Court
in exercise of its jurisdiction of
superintendence can interfere in order only to
keep the tribunals and Courts subordinate to
it, 'within the bounds of their authority'.
(f) In order to ensure that law is followed by
such tribunals and Courts by exercising
jurisdiction which is vested in them and by
not declining to exercise the jurisdiction
which is vested in them.
(g) Apart from the situations pointed in (e)
and (f), High Court can interfere in exercise
of its power of superintendence when there has
been a patent perversity in the orders of the
tribunals and Courts subordinate to it or
where there has been a gross and manifest
failure of justice or the basic principles of
natural justice have been flouted.
(h) In exercise of its power of
superintendence High Court cannot interfere to
correct mere errors of law or fact or just
because another view than the one taken by the
tribunals or Courts subordinate to it, is a
possible view. In other words the jurisdiction
has to be very sparingly exercised.
(i) The High Court's power of superintendence
under Article 227 cannot be curtailed by any
statute. It has been declared a part of the
basic structure of the Constitution by the
Constitution Bench of this Court in L. Chandra
Kumar v. Union of India [(1997) 3 SCC 261 :
1997 SCC (L&S) 577] and therefore abridgment
by a constitutional amendment is also very
doubtful.
(j) It may be true that a statutory amendment
of a rather cognate provision, like Section
115 of the Civil Procedure Code by the Civil
Procedure Code (Amendment) Act, 1999 does not
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and cannot cut down the ambit of High Court's
power under Article 227. At the same time, it
must be remembered that such statutory
amendment does not correspondingly expand the
High Court's jurisdiction of superintendence
under Article 227.
(k) The power is discretionary and has to be
exercised on equitable principle. In an
appropriate case, the power can be exercised
suo motu.
(l) On a proper appreciation of the wide and
unfettered power of the High Court under
Article 227, it transpires that the main
object of this article is to keep strict
administrative and judicial control by the
High Court on the administration of justice
within its territory.
(m) The object of superintendence, both
administrative and judicial, is to maintain
efficiency, smooth and orderly functioning of
the entire machinery of justice in such a way
as it does not bring it into any disrepute.
The power of interference under this article
is to be kept to the minimum to ensure that
the wheel of justice does not come to a halt
and the fountain of justice remains pure and
unpolluted in order to maintain public
confidence in the functioning of the tribunals
and Courts subordinate to the High Court.
(n) This reserve and exceptional power of
judicial intervention is not to be exercised
just for grant of relief in individual cases
but should be directed for promotion of public
confidence in the administration of justice in
the larger public interest whereas Article 226
is meant for protection of individual
grievance. Therefore, the power under Article
227 may be unfettered but its exercise is
subject to high degree of judicial discipline
pointed out above.
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(o) An improper and a frequent exercise of
this power will be counterproductive and will
divest this extraordinary power of its
strength and vitality."
(Emphasis supplied)
11. The another decision in a case of Garment Craft v.
Prakash Chand Goel, reported in (2022) 4 SCC 181,
wherein the Hon'ble Supreme Court of India has held as
under:-
"15. Having heard the counsel for the parties,
we are clearly of the view that the impugned
order [Prakash Chand Goel v. Garment Craft,
2019 SCC OnLine Del 11943] is contrary to law
and cannot be sustained for several reasons,
but primarily for deviation from the limited
jurisdiction exercised by the High Court under
Article 227 of the Constitution of India. The
High Court exercising supervisory jurisdiction
does not act as a Court of first appeal to
reappreciate, reweigh the evidence or facts
upon which the determination under challenge is
based. Supervisory jurisdiction is not to
correct every error of fact or even a legal
flaw when the final finding is justified or can
be supported. The High Court is not to
substitute its own decision on facts and
conclusion, for that of the inferior Court or
tribunal. [Celina Coelho Pereira v. Ulhas
Mahabaleshwar Kholkar, (2010) 1 SCC 217 :
(2010) 1 SCC (Civ) 69] The jurisdiction
exercised is in the nature of correctional
jurisdiction to set right grave dereliction of
duty or flagrant abuse, violation of
fundamental principles of law or justice. The
power under Article 227 is exercised sparingly
in appropriate cases, like when there is no
evidence at all to justify, or the finding is
so perverse that no reasonable person can
possibly come to such a conclusion that the
Court or tribunal has come to. It is axiomatic
that such discretionary relief must be
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exercised to ensure there is no miscarriage of
justice.
16. Explaining the scope of jurisdiction under
Article 227, this Court in Estralla Rubber v.
Dass Estate (P) Ltd. [Estralla Rubber v. Dass
Estate (P) Ltd., (2001) 8 SCC 97] has
observed : (SCC pp. 101-102, para 6)
"6. The scope and ambit of exercise of power
and jurisdiction by a High Court under Article
227 of the Constitution of India is examined
and explained in a number of decisions of this
Court. The exercise of power under this article
involves a duty on the High Court to keep
inferior Courts and tribunals within the bounds
of their authority and to see that they do the
duty expected or required of them in a legal
manner. The High Court is not vested with any
unlimited prerogative to correct all kinds of
hardship or wrong decisions made within the
limits of the jurisdiction of the subordinate
Courts or tribunals. Exercise of this power and
interfering with the orders of the Courts or
tribunals is restricted to cases of serious
dereliction of duty and flagrant violation of
fundamental principles of law or justice, where
if the High Court does not interfere, a grave
injustice remains uncorrected. It is also well
settled that the High Court while acting under
this Article cannot exercise its power as an
appellate Court or substitute its own judgment
in place of that of the subordinate Court to
correct an error, which is not apparent on the
face of the record. The High Court can set
aside or ignore the findings of facts of an
inferior Court or tribunal, if there is no
evidence at all to justify or the finding is so
perverse, that no reasonable person can
possibly come to such a conclusion, which the
Court or tribunal has come to."
(Emphasis supplied)
12. It appears that the suit in question is filed in the year
2010. The issues were framed on 07.12.2017, and right of
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plaintiffs to lead oral evidence were closed on 15.06.2024,
thereafter, the defendants must have lead their oral
evidence. It has been so stated by the trial Court in its
impugned order that the matter is at the stage of final
arguments and six adjournments were given to the plaintiffs
for oral final arguments. At that stage, the impugned
application was filed by the plaintiffs below Exh. 178, thereby
requested the trial Court to examine the witness in support
of the documents which is sought to be exhibited i.e. Mark
50/1 - undertaking.
13. I have gone through the impugned application filed
by the plaintiffs, wherein no sufficient reasons have been
spelt out for not examining the so called witness i.e. the legal
heirs of Lala Devji during the course of the trial. Only reason
which has been assigned, which is nothing but an excuse that
due to bona fide mistake on the part of the plaintiffs, they
could not examine the aforesaid witness in support of the
document produced at Mark 50/1. Such an explanation
which is coming forth in the impugned application, is nothing
but an excuse only and afterthought on the part of the
plaintiffs.
14. When the plaintiffs were allowed to lead their oral
evidence and such documents have been submitted by the
plaintiffs since inception, it would not be out of place to
observe that it could not have been escaped from notice of
plaintiffs to examine such witness in support of the
documents produced by plaintiffs, which is already on record
of suit since its filing. Moreover, if the prayers made by the
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plaintiffs would have been accepted, it would further derail
the adjudication of the civil suit, which was filed in the year
2010 and pending at the final arguments stage. Once, the
plaintiffs are allowed to examine the witness, at this stage,
naturally the right of defendants will be surely prejudiced
and in that circumstances, the defendants will also requires
to be granted an opportunity to examine their witnesses to
counter the evidence of the plaintiffs. All these exercise
surely delay the adjudication of the suit filed by the plaintiffs
in the year 2010.
15. The trial Court has already taken into account such
factors while rejecting impugned application. Thus, it has
denied the plaintiffs to lead further oral evidence. According
to this Court, the discretion which was available with the
trial Court, if not positively exercised considering above said
peculiar facts and circumstances, it cannot be argued that
trial Court has inappropriately and arbitrarily exercised its
discretion against the plaintiffs.
16. Learned advocate Mr. Choksi during the course of
his submissions, raised several issues but unable to lay his
hand on specific provision of the CPC, whereby the plaintiffs
as a matter of right, can claim for reopening or right to
examine the witness in a suit once right of oral evidence of
plaintiffs/defendants closed, and especially when suit is at
the stage of final arguments. Unless and until there is an
expressed provisions which entitle the party to claim as a
matter of right and trial Court is under solemn obligation to
exercise its discretion in favour of the parties, no fault can be
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found to the trial Court when in peculiar facts and
circumstances, it has denied the permission to the plaintiffs
to examine the witness when the matter is at the stage of
final arguments being an old suit.
17. As such, an endeavour of every parties to see that
the suit which is filed, requires to be adjudicated at the
earliest. The amendments which are made in the CPC also, in
light of its object, which is sought to be achieved, that every
civil litigation requires to be expedited and without wasting
the Court's time, the parties will have to cooperate for its
trial, thereby the Civil Court can adjudicate the Lis between
the parties. Even as per the amended Order XVII of CPC,
now the Civil Court would reluctant to grant adjournment
that too more than three times to a party during the hearing
of the suit that too with payment of cost.
18. As noted hereinabove, the Civil Court has already
granted six adjournments in favour of the plaintiffs to
complete his final arguments, which is not yet began by the
plaintiffs. This shows their conduct, how casually the
plaintiffs are proceedings with their own suit filed in the year
2010. The party at some point of time, made submission to
the Court for not disposing of the suit within reasonable time
but forgot to see their own conduct during course of trial.
19. The decision of the Coordinate Bench of this Court in
the case of Deceased Khimabhai @ Khimjibhai
Nathubhai Doru and Ors. (supra), would not lay down the
law, but appears to have been passed in the facts and
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circumstances of the case, which is not having binding
precedent.
20. So far as the decision of Hon'ble High Court of Delhi
in the case of Sudir Engineering Company (supra), would
not take the case of the petitioners further as there is no
cavil that mere exhibiting the documents would not amount
to proving its content. As such document mark 50/1 is now
given exhibit because defendant has orally say no objection
for its exhibit but that does not mean that now, plaintiffs can
take undue advantage of generosity shown by defendant for
exhibiting document and demand for examination of witness.
According to this Court, it would amount to fill in lacuna on
part of the plaintiffs remain in their evidence.
21. The issue germane in the present application is right
of plaintiffs to examine the witness at the stage when the suit
has reached at the stage of final arguments. So, considering
the conduct of the plaintiffs and the fact that six
adjournments were already granted to the plaintiffs for
submitting their his oral submissions, if at that stage, the
plaintiffs felt that they want to examine the witness, and if
such request denied by the trial Court, no gross error of law
committed by the trial Court while rejecting the impugned
application.
22. Lastly before parting with judgement, I would like
observe the concern so raised by Honourable Supreme Court
of India in a case of Ishwarlal Mali Rathod versus Gopal
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and Ors. reported in (2021) 12 SCC 612, wherein
observed and held as under,
"[5] Grant of repeated adjournments in routine
manner and how it affects ultimately the justice
delivery system as such came to be considered by
this court in catena of decisions and asking/grant
of repeated adjournments have been repeatedly
condemned by this court.
5.1 In the case of Shiv Cotex v. Tirgun Auto Plast
(P) Ltd., 2011 9 SCC 678, it is observed and held in
paragraphs 14 to 17 as under:-
"14. ... Is the court obliged to give
adjournment after adjournment merely because
the stakes are high in the dispute? Should the
court be a silent spectator and leave control
of the case to a party to the case who has
decided not to take the case forward?
15. It is sad, but true, that the litigants
seek-and the courts grant-adjournments at the
drop of the hat. In the cases where the Judges
are little proactive and refuse to accede to
the requests of unnecessary adjournments, the
litigants deploy all sorts of methods in
protracting the litigation. It is not
surprising that civil disputes drag on and on.
The misplaced sympathy and indulgence by the
appellate and revisional courts compound the
malady further. The case in hand is a case of
such misplaced sympathy. It is high time that
courts become sensitive to delays in justice
delivery system and realise that adjournments
do dent the efficacy of the judicial process
and if this menace is not controlled
adequately, the litigant public may lose faith
in the system sooner than later. The courts,
particularly trial courts, must ensure that on
every date of hearing, effective progress takes
place in the suit.
16. No litigant has a right to abuse the
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procedure provided in CPC. Adjournments have
grown like cancer corroding the entire body of
justice delivery system.
17.... A party to the suit is not at liberty to
proceed with the trial at its leisure and
pleasure and has no right to determine when the
evidence would be let in by it or the matter
should be heard. The parties to a suit-whether
the plaintiff or the defendant-must cooperate
with the court in ensuring the effective work
on the date of hearing for which the matter has
been fixed. If they don't, they do so at their
own peril."
5.2 Commenting on the delay in the justice-delivery
system, although in respect of the criminal trial,
Krishna Iyer, J. in the case of Babu Singh v. State
of U.P., 1978 1 SCC 579 has observed in paragraph 4
as under:-
"4. ... Our justice system, even in grave
cases, suffers from slow motion syndrome which
is lethal to 'fair trial', whatever the
ultimate decision. Speedy justice is a
component of social justice since the
community, as a whole, is concerned in the
criminal being condignly and finally punished
within a reasonable time and the innocent being
absolved from the inordinate ordeal of criminal
proceedings."
5.3 In the case of Noor Mohammed v. Jethanand and
Anr., 2013 5 SCC 202, using very harsh words and
condemning the repeated adjournments sought by the
lawyers and granted by the courts, this court has
observed in paragraph 1, 12, 13, 27 and 28 as
under:-
"1. In a democratic body polity which is
governed by a written Constitution and where
the Rule of Law is paramount, the judiciary is
regarded as sentinel on the qui vive not only
to protect the fundamental rights of the
citizens but also to see that the democratic
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values as enshrined in the Constitution are
respected and the faith and hope of the people
in the constitutional system are not atrophied.
Sacrosanctity of the Rule of Law neither
recognises a master and a slave nor does it
conceive of a ruler and a subject but, in
quintessentiality, encapsules and sings in
glory of the values of liberty, equality and
justice in accordance with law requiring the
present generation to have the responsibility
to sustain them with all fairness for the
posterity ostracising all affectations. To
maintain the sacredness of democracy, sacrifice
in continuum by every member of the collective
is a categorical imperative. The fundamental
conception of democracy can only be preserved
as a colossal and priceless treasure where
virtue and values of justice rule supreme and
intellectual anaemia is kept at bay by constant
patience, consistent perseverance, and
arguseyed vigilance. The foundation of justice,
apart from other things, rests on the speedy
delineation of the lis pending in courts. It
would not be an exaggeration to state that it
is the primary morality of justice and ethical
fulcrum of the judiciary. Its profundity lies
in not allowing anything to cripple the same or
to do any act which would freeze it or make it
suffer from impotency. Delayed delineation of a
controversy in a court of law creates a dent in
the normative dispensation of justice and in
the ultimate eventuate, the Bench and the Bar
gradually lose their reverence, for the sense
of divinity and nobility really flows from the
institutional serviceability. Therefore,
historically, emphasis has been laid on
individual institutionalism and collective
institutionalism of an adjudicator while
administering justice. It can be stated without
any fear of contradiction that the collective
collegiality can never be regarded as an alien
concept to speedy dispensation of justice. That
is the hallmark of duty, and that is the real
measure.
12. The proceedings in the second appeal before
the High Court, if we allow ourselves to say
so, epitomises the corrosive effect that
adjournments can have on a litigation and how a
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lis can get entangled in the tentacles of an
octopus. The philosophy of justice, the role of
a lawyer and the court, the obligation of a
litigant and all legislative commands, the
nobility of the Bench and the Bar, the ability
and efficiency of all concerned and ultimately
the divinity of law are likely to make way for
apathy and indifference when delay of the
present nature takes place, for procrastination
on the part of anyone destroys the values of
life and creates a catastrophic turbulence in
the sanctity of law. The virtues of
adjudication cannot be allowed to be paralysed
by adjournments and non-demonstration of due
diligence to deal with the matter. One cannot
be oblivious to the feeling necessities of the
time. No one can afford to sit in an ivory
tower. Neither a Judge nor a lawyer can ignore
"the total push and pressure of the cosmos". It
is devastating to expect infinite patience.
Change of attitude is the warrant and command
of the day. We may recall with profit what
Justice Cardozo had said: "It is true, I think,
today in every department of the law that the
social value of a rule has become a test of
growing power and importance." [ Benjamin N.
Cardozo, The Nature of Judicial Process (Cosimo
Inc., 2009) 73]
13. It has to be kept in mind that the time of
leisure has to be given a decent burial. The
sooner it takes place, the better it is. It is
the obligation of the present generation to
march with the time and remind oneself every
moment that the rule of law is the centripodal
concern and delay in delineation and disposal
of cases injects an artificial virus and
becomes a vitiating element. The unfortunate
characteristics of endemic delays have to be
avoided at any cost. One has to bear in mind
that this is the day, this is the hour and this
is the moment, when all soldiers of law fight
from the path. One has to remind oneself of the
great saying, "Awake, Arise, 'O' Partha".
27. The anguish expressed in the past and the
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role ascribed to the Judges, the lawyers and
the litigants is a matter of perpetual concern
and the same has to be reflected upon every
moment. An attitude of indifference can neither
be appreciated nor tolerated. Therefore, the
serviceability of the institution gains
significance. That is the command of the
Majesty of Law and none should make any
maladroit effort to create a concavity in the
same. Procrastination, whether at the
individual or institutional level, is a
systemic disorder. Its corrosive effect and
impact is like a disorderly state of the
physical frame of a man suffering from an
incurable and fast progressive malignancy.
Delay either by the functionaries of the court
or the members of the Bar significantly
exhibits indolence and one can aphoristically
say, borrowing a line from Southwell "creeping
snails have the weakest force" [ Robert
Southwell, "Loss in Delay", in William B.
Turnbull (Ed.), The Poetical Works of the Rev.
Robert Southwell (John Russell Smith, London
1856), p. 60.] . Slightly more than five
decades back, talking about the responsibility
of the lawyers, Nizer Louis had put thus:
"I consider it a lawyer's task to bring calm
and confidence to the distressed client. Almost
everyone who comes to a law office is
emotionally affected by a problem. It is only a
matter of degree and of the client's inner
resources to withstand the pressure." [ Nizer
Louis, My Life in Court (Doubleday & Co. Inc.,
New York 1961), p. 213]
A few lines from the illustrious Justice
Frankfurter is fruitful to recapitulate:
"I think a person who throughout his life is
nothing but a practising lawyer fulfils a very
great and essential function in the life of
society. Think of the responsibilities on the
one hand, and the satisfaction on the other, to
be a lawyer in the true sense." [ Felix
Frankfurter, "Proceedings in Honor of Mr.
Justice Frankfurter and Distinguished Allumni,
Occasional Pamphlet No. 3" (Harvard Law School,
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Cambridge, 1960), pp. 4-5]
28. In a democratic set-up, intrinsic and
embedded faith in the adjudicatory system is of
seminal and pivotal concern. Delay gradually
declines the citizenry faith in the system. It
is the faith and faith alone that keeps the
system alive. It provides oxygen constantly.
Fragmentation of faith has the effect-
potentiality to bring in a state of cataclysm
where justice may become a casualty. A litigant
expects a reasoned verdict from a temperate
Judge but does not intend to and, rightly so,
to guillotine much of time at the altar of
reasons. Timely delivery of justice keeps the
faith ingrained and establishes the sustained
stability. Access to speedy justice is regarded
as a human right which is deeply rooted in the
foundational concept of democracy and such a
right is not only the creation of law but also
a natural right. This right can be fully
ripened by the requisite commitment of all
concerned with the system. It cannot be
regarded as a facet of Utopianism because such
a thought is likely to make the right a mirage
losing the centrality of purpose. Therefore,
whoever has a role to play in the justice-
dispensation system cannot be allowed to
remotely conceive of a casual approach."
5.4 In the aforesaid decision, this court also
considered the role of advocate in the justice
delivery system and considered the earlier decisions
in paragraphs 17 to 22 which read as under:-
"17. In Ramon Services (P) Ltd. v. Subhash
Kapoor, 2001 1 SCC 118: 2001 SCC (Cri) 3 : 2001
SCC (L&S) 152 : AIR 2001 SC 207] , after
referring to a passage from Mahabir Prasad
Singh v. Jacks Aviation (P) Ltd., 1999 1 SCC
37: AIR 1999 SC 287] , the Court cautioned thus
: (Ramon Services case, 2001 1 SCC 118: 2001
SCC (Cri) 3 : 2001 SCC (L&S) 152 : AIR 2001 SC
207] , SCC p. 126, para 15)
"15. ... Nonetheless we put the profession to
notice that in future the advocate would also
be answerable for the consequence suffered by
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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, 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 mulcts 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 justifiable cause the court can
certainly absolve him from such a liability."
Be it noted, though the said passage was stated
in the context of strike by the lawyers, yet it
has its accent on non-appearance by a counsel
in the court. 18. In this context, we may refer
to the pronouncement in Pandurang Dattatraya
Khandekar v. Bar Council of Maharashtra, 1984 2
SCC 556: 1984 SCC (Cri) 335] , wherein the
Court observed that : (SCC p. 563, para 9)
"9. ... An advocate stands in a loco parentis
towards the litigants and it therefore follows
that the client is entitled to receive
disinterested, sincere and honest treatment
especially where the client approaches the
advocate for succour in times of need."
19. In Lt. Col. S.J. Chaudhary v. State (Delhi
Admn.), 1984 1 SCC 722: 1984 SCC (Cri) 163 :
AIR 1984 SC 618] , a three-Judge Bench, while
dealing with the role of an advocate in a
criminal trial, has observed as follows : (SCC
pp. 723-24, para 3)
"3. We are unable to appreciate the difficulty
said to be experienced by the petitioner. It is
stated that his advocate is finding it
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difficult to attend the court from day to day.
It is the duty of every advocate, who accepts
the brief in a criminal case to attend the
trial from day to day. We cannot over-stress
the duty of the advocate to attend to the trial
from day to day. Having accepted the brief, he
will be committing a breach of his professional
duty, if he so fails to attend."
In Mahabir Prasad Singh, 1999 1 SCC 37: AIR
1999 SC 287], the Bench, laying emphasis on the
obligation of a lawyer in his duty towards the
Court and the duty of the Court to the Bar, has
ruled as under: (SCC p. 44, paras 17-18)
"17. ... 'A lawyer is under obligation to do
nothing that shall detract from the dignity of
the court of which he is himself a sworn
officer and assistant. He should at all times
pay deferential respect to the Judge, and
scrupulously observe the decorum of the
courtroom.' [Warevelle's Legal Ethics, p. 182]
18. Of course, it is not a unilateral affair.
There is a reciprocal duty for the court also
to be courteous to the members of the Bar and
to make every endeavour for maintaining and
protecting the respect which members of the Bar
are entitled to have from their clients as well
as from the litigant public. Both the Bench and
the Bar are the two inextricable wings of the
judicial forum and therefore the aforesaid
mutual respect is sine qua non for the
efficient functioning of the solemn work
carried on in courts of law. But that does not
mean that any advocate or a group of them can
boycott the courts or any particular court and
ask the court to desist from discharging
judicial functions. At any rate, no advocate
can ask the court to avoid a case on the ground
that he does not want to appear in that court."
21. While recapitulating the duties of a lawyer
towards the court and society, being a member
of the legal profession, this Court in O.P.
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Sharma v. High Court of P&H, 2011 6 SCC 86:
(2011) 3 SCC (Civ) 218 : (2011) 2 SCC (Cri) 821
: (2011) 2 SCC (L&S) 11] has observed that :
(SCC p. 92, para 17)
"17. The role and status of lawyers at the
beginning of sovereign and democratic India is
accounted as extremely vital in deciding that
the nation's administration was to be governed
by the rule of law."
The Bench emphasised on the role of eminent
lawyers in the framing of the Constitution. The
emphasis was also laid on the concept that
lawyers are the officers of the court in the
administration of justice.
22. In R.K. Garg v. State of H.P., 1981 3 SCC
166: 1981 SCC (Cri) 663] , Chandrachud, C.J.,
speaking for the Court pertaining to the
relationship between the Bench and the Bar,
opined thus : (SCC p. 170, para 9)
"9. ... the Bar and the Bench are an integral
part of the same mechanism which administers
justice to the people. Many members of the
Bench are drawn from the Bar and their past
association is a source of inspiration and
pride to them. It ought to be a matter of equal
pride to the Bar. It is unquestionably true
that courtesy breeds courtesy and just as
charity has to begin at home, courtesy must
begin with the Judge. A discourteous Judge is
like an ill-tuned instrument in the setting of
a courtroom. But members of the Bar will do
well to remember that such flagrant violations
of professional ethics and cultured conduct
will only result in the ultimate destruction of
a system without which no democracy can
survive."
5.5 Today the judiciary and the justice delivery
system is facing acute problem of delay which
ultimately affects the right of the litigant to
access to justice and the speedy trial. Arrears are
mounting because of such delay and dilatory tactics
and asking repeated adjournments by the advocates
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and mechanically and in routine manner granted by
the courts. It cannot be disputed that due to delay
in access to justice and not getting the timely
justice it may shaken the trust and confidence of
the litigants in the justice delivery system. Many a
times, the task of adjournments is used to kill
Justice. Repeated adjournments break the back of the
litigants. The courts are enjoying upon to perform
their duties with the object of strengthening the
confidence of common man in the institution
entrusted with the administration of the justice.
Any effort which weakens the system and shake the
faith of the common man in the justice dispensation
has to be discouraged. Therefore the courts shall
not grant the adjournments in routine manner and
mechanically and shall not be a party to cause for
delay in dispensing the justice. The courts have to
be diligence and take timely action in order to
usher in efficient justice dispensation system and
maintain faith in rule of law. We are also aware
that whenever the trial courts refused to grant
unnecessary adjournments many a times they are
accused of being strict and they may face
displeasure of the Bar. However, the judicial
officers shall not worry about that if his
conscience is clear and the judicial officer has to
bear in mind his duties to the litigants who are
before the courts and who have come for justice and
for whom Courts are meant and all efforts shall be
made by the courts to provide timely justice to the
litigants. Take an example of the present case. Suit
was for eviction. Many a times the suits are filed
for eviction on the ground of bonafide requirements
of the landlord. If plaintiff who seeks eviction
decree on the ground of personal bonafide
requirement is not getting the timely justice and he
ultimately gets the decree after 10 to 15 years, at
times cause for getting the eviction decree on the
ground of personal bonafide requirement may be
defeated. The resultant effect would be that such a
litigant would lose confidence in the justice
delivery system and instead of filing civil suit and
following the law he may adopt the other mode which
has no backing of law and ultimately it affects the
rule of law. Therefore, the court shall be very slow
in granting adjournments and as observed hereinabove
they shall not grant repeated adjournments in
routine manner. Time has now come to change the work
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culture and get out of the adjournment culture so
that confidence and trust put by the litigants in
the Justice delivery system is not shaken and Rule
of Law is maintained."
(Emphasis supplied)
23. Thus, considering the aforesaid facts and
circumstances of the case and the aforesaid ratio laid down
in the aforementioned decisions, I am of the considered view
that there is no gross error of law and or jurisdictional error
committed by the trial Court while rejecting the impugned
application filed by the plaintiffs.
24. In view of the aforesaid, the present petition lack of
merits, requires to be dismissed. The same is hereby
DISMISSED. No order as to costs.
(MAULIK J.SHELAT,J)
AMAR SINGH
