Himachal Pradesh High Court

Hpseb Ltd vs . on 1 October, 2024

HPSEB Ltd.

Vs.

M/s DV Steels

C.S. No. 45 of 2015

01.10.2024 Present: Mr. A.K. Dhiman, Advocate, for the plaintiff.

Mr. R.L. Verma, Advocate, for the defendant.

Steps for the summoning of the plaintiff's witnesses

are awaited. It was ordered on 29.12.2016 that the matter be

listed before the Additional Registrar (Judicial) on 05.01.2017

for fixing the date for recording the evidence. Thereafter,

adjournments were sought. The Court ordered on 08.11.2017

that the evidence was to be produced on self-responsibility. On

05.04.2018, it was ordered that the plaintiff had no justifiable

cause for not producing the evidence however, in the interest of

justice one more opportunity was granted on the payment of

the cost of Rs.10,000/-. On 25.07.2018, the Court noticed that a

last opportunity was granted subject to the payment of cost,

however, the cost, as earlier ordered, was not paid and the steps

were also not taken. Thereafter, the matter was again

adjourned at the joint request of the learned counsel for the

parties and referred to the Mediator. A perusal of the order

dated 06.08.2019 shows that steps for summoning the

plaintiff's witnesses were not taken and the learned counsel

representing the plaintiff prayed for a further two weeks for

evidence, which was granted. On 30.10.2023, the last

opportunity was granted to the plaintiff to produce evidence on

taking steps within 10 days, however, steps have not been

taken.

2. Today, learned counsel for the plaintiff sought

time to produce the evidence but it is too late. It is a classic case,

which shows how a civil process is being abused by the plaintiff

by seeking repeated adjournments. It was laid down by

Allahabad High Court in Chandra Prakash Ojha v. District

Judge, Bareli 2004 SCC OnLine All 26 that Order 17 Rule 1 of

CPC specifically provides that no adjournment shall be

granted more than three times during the hearing of the

suit and even three adjournments cannot be granted as a

matter of right. It was observed:-

"4. It may be mentioned that under Order 17, Rule 1

C.P.C. it is specifically provided that no adjournment shall be granted more than three times during hearings of suits. In our opinion even these 3 adjournments cannot be claimed as of right as adjournment is in the discretion of the Court, and cannot be claimed as of right."

3. Delhi High Court held in Jasbir Sobti v. Surender

Singh, 2008 SCC OnLine Del 845 that adjournments cannot

be granted in the interest of justice. It was observed:

6. The question that arises for consideration is as to whether another opportunity is to be given to the plaintiffs under the cloak of 'in the interest of

justice'. The answer to this question would lie in

.

replying to the related question, namely, whether

the interest of justice demands that the case be decided on merits even when there are lapses galore on the part of the plaintiffs in not

prosecuting the case diligently thereby delaying the process endlessly. We are afraid, in the name of justice, that no such licence can be given to the plaintiffs. No doubt, if there is a minor procedural

lapse, that can be condoned and the main purpose of the Court is to see that such cases are decided on merits. However, that would not mean that the

plaintiffs or the defendants are allowed to drag on

the proceedings unnecessarily by taking adjournments continuously. Again that does not mean that the parties do not take steps in further progress of/the case, namely, fail to file the

documents, conduct admission/denial and even fail to appear repeatedly. We have to keep in mind the interest of the opposing party as well. If the matter

is dragged like this and the opposing party is made to appear on each date and asked to come on the

next date only because nobody is appearing on behalf of the plaintiffs, it causes unnecessary harassment to the opposite party as well.

Therefore, in all such matters, the Court is under a duty to weigh the interests of both parties and maintain balance in so far as these conflicting interests are concerned.

7. The problem of arrears in the Indian courts is well known. We have 30 million cases pending in the various District Courts and the High Courts. Many attempts are being made to clear these arrears and to ensure that the cases are decided speedily and there is no unnecessary delay in the disposal of these cases. If the proceedings in a particular case linger until the judgment is delivered and the case is decided after a number of years, the adverse effects of this are well known. No doubt, if we have the dictum 'Justice hurried is justice buried' on the one hand, we cannot gloss

over another equally forceful maxim 'Justice

delayed is justice denied'. In a situation like this,

callousness, indifference and laxity on the part of the plaintiffs in pursuing the suit cannot be tolerated. It cannot be the privilege of the plaintiffs

to file a suit and not to prosecute it or enter an appearance or keep the matter pending indefinitely. A Division Bench of this Court of which one of us (A.K. Sikri, J) was the party had the occasion to deal

with precisely this very aspect in greater detail in the case of Naresh Chand Gupta v. Braham Prakash, (2007) 97 DRJ 193. Our purpose would be

served in extracting the following portion

therefrom:-

"11. In The Executive Engineer v. Machinery Parts Corporation, 129 (2006) DLT 629: 2006 (90) DRJ 379 [DB], this Court had an occasion to deal

with almost similar situation and the Court was of the view that adjournments cannot be granted on mere asking of the parties for the

purpose of evidence. This judgment was also affirmed by the Division Bench of this Court

in Supreme Telecommunication Ltd. v. RPG Transmission Ltd., 2006 (6) AD (Delhi 375: 2006

(89) DRJ 520. The following extract from this judgment, wherein judgments of other High Courts are also taken note of and discussed, is worth quoting:

"The conduct of the defendants before the Court was of such a nature that the order passed by the learned Trial Court would not call for any interference. Furthermore, the court cannot keep on adjourning the case for evidence of the parties indefinitely and grant adjournments at the mere asking of the parties, without any plausible cause or reason. Reference in this regard can be made to the judgments in the cases of Chander Singh v. Chottulal AIR 1994 Raj

186 and Sarjeet Kaur v. Gurmail

.

Singh 1999 (3) PLR 402 (Vol.123). In the

case of Sarjeet Kaur (supra), the Court held as under:

The language of the impugned order clearly shows that the plaintiff had exhausted all limits for seeking adjournment on

every score, whatsoever. The very purpose of granting the last opportunity stood frustrated by a grant of six subsequent r adjournments, but even then the

plaintiff neither summoned witnesses nor examined any. Wonder if there was any other choice left before the learned

trial court but to pass the impugned order. This court had the occasion to discuss the scope

of such power of the court and the consequence of persistent

default on the part of the party in the trial Court, in the case

of Joginder Singh v. Smt. Manjit Kaur Civil Revision No. 5885 of 1998, decided on 14.1.1999, held as under:

The cumulative effect of the provisions of Order 18 Rule 2 read with Rules 1 and 2 of Order 17 of the Code of Civil Procedure and the inherent powers of the Civil Court vested in it under Section 151 of the Code, placed an implied obligation on the Court not to adjourn the case unless the sufficient cause was shown. The cause by itself

cannot always be treated as

.

a ground for repeated

adjournments.

Unnecessary and avoidable adjournments must be

denied by the Courts. On the one hand, trial Courts are expected to dispose of suits and other

proceedings expeditiously, and on the other, if parties to a lis are permitted to get r the suits adjourned on the

mere asking and that too for the indefinite times, it would frustrate the very spirit behind the

provisions of the Code of Civil Procedure.

Obligation on a Court cannot be read as

construed in isolation. It must find its reasoning from the basic concept of a

genuine attitude of the litigant. A litigant must help the Court by

effective participation for expeditious disposal of the suit. Having taken more than six opportunities after the last opportunity was granted by the Court, the plaintiff can hardly challenge the correctness of the impugned order and more particularly on the ground that the learned trial Court has failed to exercise jurisdiction vested in it or the trial court has wrongly exercised jurisdiction.

The Rajasthan High Court in the case of Chander Singh v. Chottulal AIR 1994 Raj 186, while commenting upon the aforesaid provisions of the Code, held as under:

It is clear from the order sheet of the case

.

that the learned trial Court repeatedly

adjourned the case in utter disregard of the provisions of Order 17, Rule 1, CPC Its provisos (b) and (c) run as under:

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond

the control of that party.

(c) the fact that the pleader of a party is engaged in another Court shall not r be a ground for adjournment.

Such a liberal attitude of the trial Courts is mainly responsible for the huge arrears of cases and inordinate delay in their disposal. The learned trial Court

should have closed the defendant's evidence much earlier. It had acted illegally in granting said adjournments to

the defendant. It has not acted illegally or with material irregularity in the exercise

of its jurisdiction in any manner in passing the impugned order.

The conduct of the plaintiff-petitioner in no way demands the exercise of judicial discretion in the Court in his favour on the grounds of equity or legal maxims. Prudent reasoning leads one to no other conclusion but to one that the learned trial Court was fully justified and in fact, was left with no alternative other than closing the evidence of the petitioner."

12. Again, in Uttar Pradesh State Bridge Cor. v. Overseas Water Proofing Corpn., 2006 (130) DLT 182, the Court expressed its anguish and concern over the tendency of the parties to drag the proceedings in the following terms:

"8. Lately, it has been noticed by this Court that there is a great tendency to

drag proceedings by filing frivolous

.

applications and/or seeking

adjournment on grounds of non-

availability of counsel as also misusing the courtesy extended to counsel by

courts of passing-over matters when called out. Another ground ordinarily pressed into service is that counsel is busy in a higher court. The sum total is

that cases drag on from year to year and each adjournment adds to arrears. The backlog increases to the extent r that the daily board becomes

unmanageable. Even in this Court six to seven cases every day are filed for condoning defaults. Each time a petition for condoning default is

brought before the High Court it takes on an average six hearings for it to be disposed of while the case in the trial

court comes to a standstill. All this is done in the name of justice to the

litigant in spite of the default of lawyers.

9. In the present case, instead of proceeding with the matter after default was condoned on costs imposed, an application was moved for waiving costs, obviously, only to delay proceedings. Having carefully considered the facts of this case, this Court is of the opinion that ends of justice demand a speedy trial which cannot be allowed to be defeated by the so-called tricks of trade. Courts must firmly put down the practice of frivolous adjournments and move ahead with cases so that the same are disposed of as quickly as possible. This of course does not mean that no adjournment will be granted but adjournments should be granted only in exceptional cases by adopting a more rational approach. This is the

only method of managing workload and

.

disposing of cases in shorter duration."

13. Order 17 of the Code of Civil Procedure in its unamended form was commented upon by the

Apex Court in Bashir Ahmed v. Mehmood Hussain Shah, AIR 1995 SC 1857, in the following words:

"The Rule thus indicates that

protraction of trial of the suit should not be encouraged and the court shall try the suit as expeditiously as r possible. If the adjournment has occasioned on any sufficient ground,

then it may, in an appropriate case, adjourn to a shorter date asking the party seeking adjournment to pay

costs incurred by the party who got the witnesses produced and was ready to proceed with trial."

14. Delay which occurs due to unnecessary adjournments on the part of one or the other

party has been a matter of concern by the judiciary and legislature alike. Sweeping and

important amendments were made in the Code of Civil Procedure with the purpose of ensuring the speedy disposal of cases. In the process, Order 17 of the Code of Civil Procedure was also amended. Though there was no provision for granting adjournments for recording the evidence earlier, the amendment now provides that a party shall not be granted adjournment more than three times during the hearing of the suit. The purpose obviously is to put a cap on the number of adjournments which the parties take in adducing the evidence. In Salem Advocate Bar Association, Tamil Nadu v. Union of India, AIR 2005 SC 3353, the Supreme Court commented upon these amendments in Order 17 Code of Civil Procedure in the following words:

29. Order XVII of the Code relates to

.

grant of adjournments. Two

amendments have been made therein.

One that adjournment shall not be granted to a party more than three

times during the hearing of the suit. The other relates to the cost of adjournment. The awarding of cost has been made mandatory. Costs that can

be awarded are of two types. First, cost occasioned by the adjournment and second such higher cost as the court

deems fit.

30. While examining the scope of proviso to Order XVII Rule 1 that more than three adjournments shall not be granted, it is to be kept in view that

proviso to Order XVII Rule 2 incorporating Clauses (a) to (e) by Act 104 of 1976 has been retained. Clause

(b) stipulates that no adjournment shall be granted at the request of a

party, except where the circumstances are beyond the control of that party.

The proviso to Order XVII Rule 1 and Order XVII Rule 2 have to be read together. So read, Order XVII does not forbid grant of adjournment where the circumstances are beyond the control of the party. In such a case, there is no restriction on the number of adjournments to be granted. It cannot be said that even if the circumstances are beyond the control of a party, after having obtained a third adjournment, no further adjournment would be granted. There may be cases beyond the control of a party despite the party having obtained three adjournments. For instance, a party may be suddenly hospitalized on account of some

serious ailment or there may be a

serious accident or some act of God

leading to devastation. It cannot be said that though circumstances may be beyond the control of a party, further

adjournment cannot be granted because of the restriction of three adjournments as provided in the proviso to Order XVII Rule 1.

31. In some extreme cases, it may become necessary to adjournment despite the fact that

three adjournments have already been grant

granted (Take the example of Bhopal Gas Tragedy, Gujarat earthquake and riots, and devastation on account of the Tsunami). Ultimately it would

depend upon the facts and circumstances of each case, on the basis whereof the Court would decide

to grant or refuse adjournment. The provision for costs and higher costs

has been made because of practice having been developed to award only a

nominal cost even when adjournment on payment of costs is granted.

Ordinarily, where the costs or higher costs are awarded, the same should be realistic and as far as possible actual cost that had to be incurred by the other party shall be awarded where the adjournment is found to be avoidable but is being granted on account of either negligence or casual approach of a party or is being sought to delay the progress of the case or on any such reason. Further, to save proviso to Order XVII Rule 1 from the vice of article 14 of the Constitution of India, it is necessary to read it down so as not to take away the discretion of the Court

in the extremely hard cases noted

above. The limitation of three

adjournments would not apply where adjournment is to foe granted on account of circumstances which are

beyond the control of a party. Even in cases which may not strictly come within the category of circumstances beyond the control of a party, the

Court by resorting to the provision of higher cost which can also include punitive cost in the discretion of the r Court, adjournment beyond three can

be granted having regard to the injustice that may result on refusal thereof, with reference to peculiar facts of a case. (Emphasis added We

may, however, add that grant of any adjournment let alone first, second or third adjournment is not a right of a

party. The grant of adjournment by a court has to be on a party showing

special and extraordinary circumstances. It cannot be in a routine. While considering prayer for

grant of adjournment, it is necessary to keep in mind the legislative intent to restrict grant of adjournments.")

Guided by these considerations as well, we are of the opinion that the learned trial court was right in refusing to grant further adjournment and rightly closed evidence of the appellant.

15. Learned counsel for the appellant had referred to the judgment of the Division Bench of this Court in Malhan Builders, v. Durkhanie Jadran, 2006 (91) DRJ 106 (DB). However, we are of the opinion that this judgment would not come to the rescue of the appellant. In that case, also the evidence of the plaintiff was closed. The Division Bench held that the Court was entitled to proceed with the case and to

give decisions on merits. The plaintiff was,

however, given one opportunity to lead

evidence only because of the reason that witness had appeared three times on earlier occasions but it was the defendant who had

avoided cross-examining him and further on the particular day when evidence was closed witness was disabled due to illness of his mother. In the present case, the defendant has

not taken any undue advantage or adjournment by avoiding to cross-examine the witness. It is the witness who did not appear at most of the r hearings. He had not appeared before 3.10.2001

which led to adjournments. Even when he appeared on one or two occasions, the request was made by the plaintiff for adjournment either on the ground that counsel was not

available or the witness was not in a position to give the evidence because of his so-called illness. Even on 3.10.2001, when the

examination-in-chief of PW1 was recorded and the defendant partly cross-examined the said

witness, further cross-examination had to be deferred because of the non-availability of the plaintiff's counsel. Further, as already noted

above, even on the particular day i.e. 1.3.2002, when the evidence was closed, the trial court found that a false plea regarding the illness of the witness was taken."

5. Similarly, it was held by this Court in

Shamsher Singh v. Surat Singh, 2019 SCC OnLine HP 2298

that if a party does not lead the evidence despite repeated

opportunities granted to it, then the Court is not supposed

to wait infinitely for the party to lead its evidence. It is a

conscious act of a party not to lead its evidence and the

consequences thereof have to be borne by the party. It was

observed:-

"4. Having heard learned Counsel for the parties

and having perused the judgments and decrees passed by the learned Trial Court as well as the learned Appellate Court along with the record of the case, in my considered view, the judgment passed

by the learned Appellate Court is not sustainable in law. It is a matter of record that the evidence of the defendant was closed by the learned Trial Court after affording him more than three opportunities

to lead evidence. If a party does not lead evidence

despite reasonable opportunities granted to it, then the Court is not supposed to wait till eternity for the party to lead its evidence. It is a conscious act of a party not to lead its evidence and the consequences thereof have

to be borne by the party. This extremely important aspect of the matter has not been taken into consideration by the learned Appellate Court while

ordering that the defendant be granted an opportunity

to lead evidence." (Emphasis supplied)

6. It was held in Ishwarlal Mali Rathod v. Gopal,

(2021) 12 SCC 612: (2023) 2 SCC (Civ) 625: 2021 SCC OnLine

SC 921 that grant of repeated adjournments without any

justification is not proper. It was observed at page 616:

8. Grant of repeated adjournments in a routine manner and how it ultimately affects the justice delivery system as such came to be considered by this Court in a catena of decisions and asking/granting of repeated adjournments have been repeatedly condemned by this Court. 8.1. In Shiv Cotex v. Tirgun Auto Plast (P) Ltd. [Shiv Cotex v. Tirgun Auto Plast (P) Ltd., (2011) 9 SCC 678 :

(2011) 4 SCC (Civ) 817], it is observed and held in paras 14 to 17 as under : (SCC pp. 682-83)

"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 the 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 procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of the 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 do not, they do so at their own peril."

8.2. Commenting on the delay in the justice delivery

system, although in respect of the criminal trial,

Krishna Iyer, J. in Babu Singh v. State of U.P. [Babu Singh v. State of U.P., (1978) 1 SCC 579: 1978 SCC (Cri) 133] has observed in para 4 as under : (SCC p. 581)

"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." 8.3. In Noor Mohammed v. Jethanand [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754], using very harsh words and

condemning the repeated adjournments sought by the lawyers and granted by the courts, this Court has observed in paras 1, 12, 13, 27 and 28 as under :

(SCC pp. 206-07, 209-10 & 215-16)

"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 a sentinel on the qui vive not only to protect the fundamental rights of the citizens but also to see that the democratic 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 the glory of the values of liberty, equality and justice in accordance with the 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 the

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 argus- eyed 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 the 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 collective collegiality can never be regarded as an alien concept to the 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, epitomise the corrosive effect that adjournments can have on litigation and how a 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 of 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 the 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

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 are 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 Alumni, Occasional Pamphlet No. 3"

(Harvard Law School, Cambridge, 1960), pp. 45] .'

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's 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 the time at the altar of reason. Timely delivery of justice keeps the faith

ingrained and establishes 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." 8.4. In the aforesaid decision [Noor Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2 SCC (Civ) 754], this Court also considered the role of the advocate in the justice delivery system and considered the earlier decisions in paras 17 to 22 which read as under : (Noor Mohammed case [Noor

Mohammed v. Jethanand, (2013) 5 SCC 202 : (2013) 2

SCC (Civ) 754], SCC pp. 212-14)

"17. In Ramon Services (P) Ltd. v. Subhash Kapoor [Ramon Services (P) Ltd. v. Subhash

Kapoor, (2001) 1 SCC 118: 2001 SCC (Cri) 3: 2001 SCC (L&S) 152], after referring to a passage from Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. [Mahabir Prasad Singh v. Jacks Aviation (P)

Ltd., (1999) 1 SCC 37], the Court cautioned thus :

(Ramon Services case [Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118: 2001 SCC (Cri) 3: 2001 SCC (L&S) 152], 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 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 the 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 a 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 P.D. Khandekar v. Bar Council

of Maharashtra [P.D. 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 S.J. Chaudhary v. State (Delhi Admn.) [S.J.

Chaudhary v. State (Delhi Admn.), (1984) 1 SCC 722: 1984 SCC (Cri) 163], 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 difficult

to attend 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."

20. In Mahabir Prasad Singh [Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37], 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. Sharma v. High Court of P&H [O.P. 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 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. [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 r 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.' "

9. Today the judiciary and the justice delivery

system are facing the 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 for repeated adjournments by the advocates 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 timely justice, it may shaken the trust and confidence of the litigants in the justice delivery system. Many a time, the task of adjournments is used to kill justice. Repeated adjournments break the back of the litigants. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakes the faith of the common man in the justice dispensation has to be discouraged. Therefore the

courts shall not grant the adjournments in a

.

routine manner and mechanically and shall not be a

party to cause for delay in dispensing the justice. The courts have to be diligent and take timely action in order to usher in an efficient justice

dispensation system and maintain faith in the rule of law.

10. We are also aware that whenever the trial courts

refuse to grant unnecessary adjournments many a times they are accused of being strict and they may face the 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 the courts are meant and all efforts shall be made by the courts to provide timely justice to

the litigants.

7. In the present case, the matter has been pending

for the last eight years and the steps have not been taken

despite various opportunities. Perusal of the record shows that

two last opportunities have been granted. The payment of cost

was also ordered but the costs have also not been paid. No

reasonable cause has been assigned to adjourn the case,

therefore, the plaintiff's evidence is ordered to be closed by the

order of the Court.