Vijay Kumar Shah vs Sindhu Gupta
2021 Latest Caselaw 8967 MP

1 MP-3476-2021 The High Court Of Madhya Pradesh MP No. 3476 of 2021 (VIJAY KUMAR SHAH Vs SINDHU GUPTA)

Jabalpur, Dated : 20-12-2021 None for the petitioner.

The advocates are abstaining from work today. The Apex Court in the case of Harish Uppal (Ex-Capt.) vs. Union of Ind ia reported in (2003) 2 SCC 45 opined that despite strike of the Advocates, the Courts may decide the matters on merits. The relevant portion

of the aforesaid judgment reads as under:

"20. Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. I t is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers it would amount to scandalising the Courts to undermine its authority and thereby the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh's case (supra) that if they participate in a boycott or a strike, their action is ex-facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known, at least since Roman Services' case, that the Advocates would be answerable for the consequences suffered by their clients if the non- appearance was solely on grounds of a strike call.

35. In conclusion it is held that lawyers have no right Signature Not Verified SAN

Digitally signed by MOHD AHMAD Date: 2021.12.21 17:36:27 IST 2 MP-3476-2021 to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements, TV interviews, carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protect marches outside and away from Court premises, going on dharnas or relay fasts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must boldly refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him."

The principle can be gathered in Mahabir Prasad Singh v. Jacks Aviation (P) Ltd., (1999) 1 SCC 37; Ramon Services (P) Ltd. v. Subhash Kapoor, (2001) 1 SCC 118; Krishnakant Tamrakar v. State of M.P., (2018) 17 SCC 27; PLR Projects (P) Ltd. v. Mahanadi Coalfields Ltd., (2019) 10 SCC 306; District Bar Association Dehradun Signature Not Verified SAN v. Ishwar Shandilya, 2021 SCC OnLine SC 1071.

Digitally signed by MOHD AHMAD Date: 2021.12.21 17:36:27 IST 3 MP-3476-2021 This petition filed under article 227 of the Constitution assails the order dated 14.9.2021 to the extent petitioner's application for amendment under order VI Rule 17 of the C.P.C. is dismissed by the Court below.

The case of petitioner is that the judgement relied upon by the Court below has no application in the facts and circumstances of the case. The petitioner has filed an application before commencement of trial. The Court below should have allowed the application.

The Court below rejected the application by holding that the petitioner was fully aware that defendant was mentally sick. Had it been a case of that nature, nothing prevented the petitioner/plaintiff to include such averments in the plaint from the very beginning. The Court below also recorded that defendant appeared in person before the Court on many occasions but she behaved like a normal women. The application for amendment is filed belatedly and hence it cannot be entertained.

In the opinion of this Court, the Court below has taken a plausible view. The interference under article 227 of the Constitution can be made if order is passed by a Court having no jurisdiction, it suffers from any manifest procedural impropriety or palpable perversity. Another view is possible, is not a ground for interference.

No such ingredients are available in the present case. The petition is dismissed.

(SUJOY PAUL) JUDGE

ahd

Signature Not Verified SAN

Digitally signed by MOHD AHMAD Date: 2021.12.21 17:36:27 IST