Madhya Pradesh High Court
Brajbhan Vadiva vs The State Of Madhya Pradesh on 2 May, 2023
Author: Sujoy Paul
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
CRA No. 5530 of 2023
(BRAJBHAN VADIVA AND OTHERS Vs THE STATE OF MADHYA PRADESH)
Dated : 02-05-2023
Shri Yashovardhan Shukla - Advocate for the appellants.
Shri Yogesh Dhande - Government Advocate for the State.
I.A. No.9547 of 2023 seeking remand of this matter to Sessions Court
for final hearing is taken up.
The prayer is opposed by learned Government Advocate for the State.
The singular reason assigned by Shri Shukla, learned counsel for the
appellants is that when matter was taken up for final hearing before Sessions
Court, the learned counsel for the appellants remained absent because of strike
of the Advocates.
In our opinion, this reason cannot be a basis for interference in the
impugned order and send the matter back for re-hearing.
The Apex Court in the case of Harish Uppal (Ex-Capt.) vs. Union of
India 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. It 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
t he 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
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 5/3/2023
3:07:56 PM
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 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
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Signed by: HIMANSHU
KOSHTA
Signing time: 5/3/2023
3:07:56 PM
pay his client for loss suffered by him."
The same 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 v. Ishwar
Shandilya, 2021 SCC OnLine SC 1071.
Such prayer of remand cannot be entertained for the reasons stated
hereinabove. Accordingly, I.A. No.9547 of 2023 is dismissed.
This appeal is admitted for final hearing.
Record of Court below be requisitioned.
Reply of pending I.A., if any, be filed within fifteen days.
List alongwith the record.
(SUJOY PAUL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
HK
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 5/3/2023
3:07:56 PM
