Madhya Pradesh High Court
Neha Jain S/O Rahul Jain vs Rahul Jain on 13 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C.No.19092/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 13th OF MAY, 2024
MISC. CRIMINAL CASE No. 19092 of 2023
BETWEEN:-
NEHA JAIN S/O RAHUL JAIN D/O SHRI MAHESH
DAYAL JAIN, AGED ABOUT 31 YEARS, R/O
HOUSE HOUSE NO.NEAR FOOTI BABADI
NAVEEN NAGAR COLONY AESHBAG DISTRICT
BHOPAL (MADHYA PRADESH)
.....PETITIONER
(BY SHRI MANISH KUMAR JAIN - ADVOCATE)
AND
1. RAHUL JAIN S/O SHRI RAMESH CHAND
JAIN, AGED ABOUT 32 YEARS, R/O HOUSE
NO.194, AKAHAYDHAM CHOTI BAZAAR,
KAILASPURA BANDA (MADHYA PRADESH)
2. RAMESH CHANDRA JAIN S/O SHRI P.
SIKHARCHAND JAIN, AGED ABOUT 70
YEARS, R/O HOUSE NO. 194, AKAHAYDHAM
CHOTI BAZAAR, KAILASHPURA BANDA
21001 (UTTAR PRADESH)
3. SMT. REKHA RANI JAIN W/O SHRI REMESH
CHAND JAIN, AGED ABOUT 65 YEARS, R/O
HOUSE NO. 194, AKAHAYDHAM CHOTI
BAZAAR, KAILASHPURA BANDA 21001
(UTTAR PRADESH)
2 M.Cr.C.No.19092/2023
4. RAJNEESH JAIN W/O SHRI REMESH
CHAND JAIN R/O HOUSE NO. 194,
AKAHAYDHAM CHOTI BAZAAR,
KAILASHPURA BANDA 21001 (UTTAR
PRADESH)
5. SMT. SURBHI JAIN W/O SHRI RAJNEESH
JAIN R/O HOUSE NO. 194, AKAHAYDHAM
CHOTI BAZAAR, KAILASHPURA BANDA
21001 (UTTAR PRADESH)
6. SWAROOP CHANDRA JAIN S/O SHRI
SIKHARCHANDRA JAIN R/O SHIKHAR
CHANDRA JAIN, SWAROOP CHANDRA
JAIN, CHORI BAZAAR, KAILASHPURA,
BANDA (UTTAR PRADESH)
7. SMT. JYOTI RANI JAIN W/O SWAROOP
CHANDRA JAIN R/O SHIKHAR CHANDRA
JAIN, SWAROOP CHANDRA JAIN, CHORI
BAZAAR, KAILASHPURA, BANDA (UTTAR
PRADESH)
8. SMT. RAGINI JAIN W/O DR. RISHABH JAIN
R/O SARTHAK HOMEO CLINIC , GALLA
MANDI ROAD, VIDISHA (MADHYA
PRADESH)
9. DR. RISHABH JAIN S/O NOT MENTION R/O
SARTHAK HOMEO CLINIC , GALLA MANDI
ROAD, VIDISHA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PAWAN KUMAR SAXENA - ADVOCATE)
This application coming on for admission this day, the court
passed the following:
3 M.Cr.C.No.19092/2023
ORDER
The present file contains Vakalatnama filed by the
respondents by online mode. Vakalatnama was filed on 19.8.2023. It
neither contains Adhivakta Kalyan Nidhi nor the court fees. The
original Vakalatnama has not been filed. As per the High Court Rules
even if the documents have been filed by online mode then still filing
of original documents is necessary. The cause list was prepared on
10.5.2024 but the concerning D.A. Shri Subhash Nagle did not point
out the default that original Vakalatnama has not been filed and online
Vakalatnama does not contain the requisite court fees/Adhivakta
Kalyan Nidhi. Even the Office Superintendent Smt. Sangeeta Das
appears to be negligent in discharging her duties and she is not keeping
a watch over the activities of the Dealing Clerks who are working
under her.
2. Accordingly, Registrar General is directed to seek
explanation from Shri Nagle and Smt. Das and to take action as per
law.
3. After the abovementioned direction, Shri Nagle continued to
give explanation and thus his conduct is intolerable. Accordingly,
proceedings be initiated against him for misbehaviour in the Court.
4. Also heard on merits.
5. This application under Section 482 of Cr.P.C. has been filed
seeking following relief(s):-
"It is therefore prayed that the Hon'ble Court may
kindly be allow the application filed by applicant and
set aside the order dated 12.01.2023 passed by Smt.
Tripati Pandey the 14th ASJ Bhopal in criminal appeal
no. 305/2022 (Smt. Neha Jain Vs. Rahul Jain and
others) wherein confirm the order dated 13.04.2022
passed by Smt. Ankita Shrivastava Judicial Magistrate
1st Class Bhopal in MJC R No. 2991/2019, in the
interest of justice."
6. At the beginning, counsel for respondent sought time to file
reply. The counsel for respondents had filed his Vakalatnama on
19.08.2023 and from thereafter neither the original Vakalatnama was
filed nor any steps have been taken by respondent to file their response.
Whenever, a respondent enters his appearance, then it is always
expected that he or they shall file their response immediately and
respondent cannot withhold the reply under an impression that unless
and until a specific direction is given, he or she or they are not liable to
file any response. The notices are always issued to take their defence
and not for seeking adjournments. Further, in the case of Nandu @
Gandharva Singh Vs. Ratiram Yadav and others, by order dated
09.1.2019 passed in M.P.No.1887/2017, seeking for unnecessary
adjournment has been held to be professional misconduct.
7. This Court in the case of Nandu @ Gandharva Singh
(supra) has held as under:-.
"For the lapses on the part of the counsel for respondent
no.1 or respondent no.1 himself, this Court cannot keep the
matter pending unnecessarily and specifically when the
counsel for respondent no.1 is not ready to take the
responsibility of delay in decision of the petition, then the
counsel for respondent no.1 has no authority either legally
or morally to make prayer for adjournment.
The Supreme Court in the case of N.G. Dastane Vs.
Shrikant S. Shinde reported in (2001) 6 SCC 135 has held
as under :
"17. In Black's Law Dictionary "misconduct" is
defined as:
"A transgression of some established and definite rule
of action, a forbidden act, a dereliction from duty,
unlawful behaviour, wilful in character, improper or
wrong behaviour; its synonyms are misdemeanour,
misdeed, misbehaviour, delinquency, impropriety,
mismanagement, offence, but not negligence or
carelessness."
18. The expression "professional misconduct" was
attempted to be defined by Darling, J., in A Solicitor,
ex p, Law Society, in re in the following terms:
"If it is shown that an advocate in the pursuit of his
profession has done something with regard to it which
would be reasonably regarded as disgraceful or
dishonourable by his professional brethren of good
repute and competency, then it is open to say that he
is guilty of professional misconduct."
19. In R.D. Saxena v. Balram Prasad Sharma this
Court has quoted the above definition rendered by
Darling, J., which was subsequently approved by the
Privy Council in George Frier Grahame v. Attorney-
General and then observed thus: (SCC p. 275, para
19)
"19. Misconduct envisaged in Section 35 of the
Advocates Act is not defined. The section uses the
expression 'misconduct, professional or otherwise'.
The word 'misconduct' is a relative term. It has to be
considered with reference to the subject-matter and
the context wherein such term occurs. It literally
means wrong conduct or improper conduct."
20. An advocate abusing the process of court is guilty
of misconduct. When witnesses are present in the
court for examination the advocate concerned has a
duty to see that their examination is conducted. We
remind that witnesses who come to the court, on
being called by the court, do so as they have no other
option, and such witnesses are also responsible
citizens who have other work to attend to for eking
out a livelihood. They cannot be treated as less
respectable to be told to come again and again just to
suit the convenience of the advocate concerned. If the
advocate has any unavoidable inconvenience it is his
duty to make other arrangements for examining the
witnesses who are present in the court. Seeking
adjournments for postponing the examination of
witnesses who are present in court even without
making other arrangements for examining such
witnesses is a dereliction of an advocate's duty to the
court as that would cause much harassment and
hardship to the witnesses. Such dereliction if repeated
would amount to misconduct of the advocate
concerned. Legal profession must be purified from
such abuses of the court procedures. Tactics of
filibuster, if adopted by an advocate, is also a
professional misconduct.
21. In State of U.P. v. Shambhu Nath Singh this Court
has deprecated the practice of courts adjourning cases
without examination of witnesses when such
witnesses are in attendance. We reminded the courts
thus:
"We make it abundantly clear that if a witness is
present in court he must be examined on that day. The
court must know that most of the witnesses could
attend the court only at heavy cost to them, after
keeping aside their own avocation. Certainly they
incur suffering and loss of income. The meagre
amount of bhatta (allowance) which a witness may be
paid by the court is generally a poor solace for the
financial loss incurred by him. It is a sad plight in the
trial courts that witnesses who are called through
summons or other processes stand at the doorstep
from morning till evening only to be told at the end of
the day that the case is adjourned to another day. This
primitive practice must be reformed by presiding
officers of the trial courts and it can be reformed by
everyone provided the presiding officer concerned has
a commitment to duty. No sadistic pleasure in seeing
how other persons summoned by him as witnesses are
stranded on account of the dimension of his judicial
powers can be a persuading factor for granting such
adjournments lavishly, that too in a casual manner."
22. When the Bar Council in its wider scope of
supervision over the conduct of advocates in their
professional duties comes across any instance of such
misconduct it is the duty of the Bar Council
concerned to refer the matter to its Disciplinary
Committee. The expression "reason to believe" is
employed in Section 35 of the Act only for the limited
purpose of using it as a filter for excluding frivolous
complaints against advocates. If the complaint is
genuine and if the complaint is not lodged with the
sole purpose of harassing an advocate or if it is not
actuated by mala fides, the Bar Council has a statutory
duty to forward the complaint to the Disciplinary
Committee.
23. In Bar Council of Maharashtra v. M.V. Dabholkar
a four-Judge Bench of this Court had held that the
requirement of "reason to believe" cannot be
converted into a formalised procedural roadblock, it
being essentially a barrier against frivolous enquiries.
24. In our opinion, the State Bar Council has
abdicated its duties when it was found that there was
no prima facie case for the Disciplinary Committee to
take up. The Bar Council of India also went woefully
wrong in holding that there was no case for revision at
all. In our considered view the appellantcomplainant
has made out a very strong prima facie case for the
Disciplinary Committee of the State Bar Council to
proceed with. We, therefore, set aside the order of the
State Bar Council as well as that of the Bar Council of
India and we hold that the complaint of the appellant
would stand referred to the Disciplinary Committee of
the State Bar Council."
The Supreme Court in the case of Noor Mohammed v.
Jethanand, reported in (2013) 5 SCC 202 has held as
under :
"15. We may note with profit that the Court in
Kailash case had further opined that the procedure is
directory but emphasis was laid on the concept of
desirability and for the aforesaid purpose, reference
was made to Topline Shoes Ltd. v. Corporation Bank.
Analysing the purpose behind it, the three- Judge-
Bench, referring to Topline Shoes Ltd., observed thus:
(Kailash case, SCC p. 497, para 36)
"36. The Court further held that the provision is more
by way of procedure to achieve the object of speedy
disposal of such disputes. The strong terms in which
the provision is couched are an expression of
'desirability' but do not create any kind of substantive
right in favour of the complainant by reason of delay
so as to debar the respondent from placing his version
in defence in any circumstances whatsoever."
16. In Shiv Cotex v. Tirgun Auto Plast (P) Ltd. this
Court was dealing with a judgment passed by the
High Court in a second appeal wherein the High
Court had not formulated any substantial question of
law and further allowed the second appeal preferred
by the plaintiff solely on the ground that the stakes
were high and the plaintiff should have been non-
suited on the basis of no evidence. This Court took
note of the fact that after issues were framed and the
matter was fixed for production of the evidence of the
plaintiff on three occasions, the plaintiff chose not to
adduce the evidence. The question posed by the Court
was to the following effect: (SCC p. 682, para 14)
"14. ... Is the court obliged to give adjournment after
adjournment merely because the stakes are high in the
dispute? Should the court be silent spectator and leave
control of the case to a party to the case who has
decided not to take the case forward?"
Thereafter, the Court proceeded to answer thus: (Shiv
Cotex case, SCC pp. 682-83, paras 15-16)
"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 procedure
provided in CPC. Adjournments have grown like
cancer corroding the entire body of justice delivery
system."
After so stating, the Bench observed as follows: (Shiv
Cotex case, SCC p. 683, para 17)
"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."
17. In Ramon Services (P) Ltd. v. Subhash Kapoor,
after referring to a passage from Mahabir Prasad
Singh v. Jacks Aviation (P) Ltd., the Court cautioned
thus: (Ramon Services case, 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 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, 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.),
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 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 overstress 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, 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.'
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 and H 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., 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."
23. We have referred to the aforesaid judgments
solely for the purpose that this Court, in different
contexts, had dealt with the malady of adjournment
and expressed its agony and anguish. Whatever may
be the nature of litigation, speedy and appropriate
delineation is fundamental to judicial duty.
Commenting on the delay in the justice delivery
system, although in respect of the criminal trial,
Krishna Iyer, J. had stated thus: (Babu Singh case,
SCC p. 581, para 4)
"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."
24. In criminal jurisprudence, speedy trial has become
an indivisible component of Article 21 of the
Constitution and it has been held by this Court that it
is the constitutional obligation on the part of the State
to provide the infrastructure for speedy trial [see
Hussainara Khatoon (3) v. State of Bihar and
Hussainara Khatoon (4) v. State of Bihar].
25. In Diwan Naubat Rai v. State (Delhi Admn.), it
has been opined that the right to speedy trial
encompasses all stages of trial, namely, investigation,
enquiry, trial, appeal and revision.
26. In Surinder Singh v. State of Punjab, it has been
reiterated that speedy trial is implicit in the broad
sweep and content of Article 21 of the Constitution of
India. Thus, it has been put at the zenith and that
makes the responsibility of everyone Everestine
which has to be performed with Olympian calmness.
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 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". 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."
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."
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.
29. In this context, it is apt to refer to a passage from
Ramdeo Chauhan v. State of Assam: (SCC p. 739,
para 22)
"22. ... The judicial system cannot be allowed to be
taken to ransom by having resort to imaginative and
concocted grounds by taking advantage of loose
sentences appearing in the evidence of some of the
witnesses, particularly at the stage of special leave
petition. The law insists on finality of judgments and
is more concerned with the strengthening of the
judicial system. 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 shakens the faith of
the common man in the justice dispensation system
has to be discouraged."
30. In Zahira Habibulla H. Sheikh v. State of Gujarat,
emphasising on the duty of the court to maintain
public confidence in the administration of justice, this
Court has poignantly held as follows: (SCC p. 184,
para 35)
"35. ... Courts have always been considered to have
an overriding duty to maintain public confidence in
the administration of justice--often referred to as the
duty to vindicate and uphold the 'majesty of the law'.
Due administration of justice has always been viewed
as a continuous process, not confined to determination
of the particular case, protecting its ability to function
as a court of law in the future as in the case before it."
31. Thus, from the aforesaid, it is clear as day that
everyone involved in the system of dispensation of
justice has to inspire the confidence of the common
man in the effectiveness of the judicial system.
Sustenance of faith has to be treated as spinal sans
sympathy or indulgence. If someone considers the
task to be Herculean, the same has to be performed
with solemnity, for faith is the "élan vital" of our
system.
32. Coming to the proceedings before the High Court
from the date of presentation of the second appeal till
the date of admission, the manner in which it has
progressed is not only perplexing but also shocking.
We are inclined to think that the Court should not
have shown indulgence of such magnitude by
adjourning the matter when the counsel for the
appellant was not present. It is difficult to envision
why the Court directed fresh notice to the appellant
when there was nothing suggestive for passing of
such an order. The matter should have been dealt with
taking a recourse to the provisions in the Code of
Civil Procedure. It is also astonishing that the lawyers
sought adjournments in a routine manner and the
court also acceded to such prayers. When the matter
stood dismissed, though an application for restoration
was filed, yet it was listed after a long lapse of time.
Adding to the misery, the official concerned took his
own time to put the file in order. From the Registrar
General's communication it is perceptible that some
disciplinary action has been initiated against the
erring official. That is another matter and we do not
intend to say anything in that regard. But the fact that
cannot be brushed aside is that there is enormous
delay in dealing with the case. Had timely effort been
made and due concern bestowed, it could have been
avoided. There may be cases where delay may be
unavoidable. We do not intend to give illustrations,
for facts in the said cases shall speak for themselves.
33. In the case at hand, as we perceive, the learned
counsel sought adjournment after adjournment in a
non-chalant manner and the same were granted in a
routine fashion. It is the duty of the counsel as the
officer of the court to assist the court in a properly
prepared manner and not to seek unnecessary
adjournments. Getting an adjournment is neither an
art nor science. It has never been appreciated by the
courts. All who are involved in the justice-
dispensation system, which includes the Judges, the
lawyers, the judicial officers who work in courts, the
law officers of the State, the Registry and the litigants,
have to show dedicated diligence so that a controversy
is put to rest. Shifting the blame is not the cure.
Acceptance of responsibility and dealing with it like a
captain in the frontier is the necessity of the time. It is
worthy to state that diligence brings satisfaction.
There has to be strong resolve in the mind to carry out
the responsibility with devotion. A time has come
when all concerned are required to abandon idleness
and arouse oneself and see to it that the syndrome of
delay does not erode the concept of dispensation of
expeditious justice which is the constitutional
command. Sagacious acceptance of the deviation and
necessitous steps taken for the redressal of the same
would be a bright lamp which would gradually
become a laser beam. This is the expectation of the
collective, and the said expectation has to become a
reality. Expectations are not to remain at the stage of
hope. They have to be metamorphosed to actuality.
Long back, Francis Bacon, in his aphoristic style, had
said, "Hope is good breakfast, but it is bad supper."**
We say no more on this score.
34. Though we have dwelled upon the issue, yet we
refrain from issuing any directions, for the High Court
as a constitutional court has to carry the burden and
live up to the requisite expectations of the litigants. It
is also expected from the lawyers' community to see
that delay is avoided. A concerted effort is bound to
give results. Therefore, we request the learned Chief
Justice of the High Court of Rajasthan as well as the
other learned Chief Justices to conceive and adopt a
mechanism, regard being had to the priority of cases,
to avoid such inordinate delays in matters which can
really be dealt with in an expeditious manner. Putting
a step forward is a step towards the destination. A
sensible individual inspiration and a committed
collective endeavour would indubitably help in this
regard. Neither less, nor more."
As already observed by the Supreme Court, that
adjournments are growing like a cancer, which is eroding
the system. A time has come, where the Bar has to raise its
standard and must fulfill the expectations of the litigating
parties, for early disposal of the cases. Justice delayed
justice denied. The Bar must not try to create hurdles in the
justice dispensation system, by unnecessarily seeking
adjournments and above all, must not try to pinch the Court,
by saying that since, the adjournment has been refused,
therefore, under compulsion, they are arguing the matters.
Once, the lawyer has accepted the brief, then it is his
bounden duty towards the institution. They have a duty
towards their client, they have a duty to prepare the case and
present the case properly without suppressing any fact, so
that they can effectively assist the Court. Seeking
adjournments for no reason does amount to professional
misconduct and the Bar Councils must also rise to the
occasion either by issuing necessary instructions to the
Advocates on its roll or by taking disciplinary action against
the Advocate, if any complaint with regard to seeking
unnecessary adjournments by the Advocate is made. The
Advocates are not the mouth piece of their clients for the
purposes of delaying the Court proceedings, nor they should
avoid hearing but being the officers of the Court, they have
sacrosanct duty towards the Court. Once, the case is listed in
the Cause list, then any Advocate cannot refuse to argue the
matter on the ground that older matters are also pending,
therefore, the comparatively new matter should be
adjourned, and should not be heard unless and until it
becomes old. The lawyers must not forget, that by seeking
unnecessary adjournments, they are frustrating the
legitimate right of one of the litigating party and thus by
adopting dilatory tactics, they are creating a situation, where
the litigating party may lose its faith in the judiciary. It is the
duty of the Courts to decide the matters as early as possible,
and if the lawyers refuse to co-operate with the Courts, then
a time has come, where the Court would be left with no
other option but to decide the matters on its own, by going
through the record, and this situation would never help the
litigating party and the lawyers must understand that when
they have been engaged by their clients with a hope and
belief, that their Counsel would place their case before the
Court, in a most effective manner, then after having
accepted the brief, it is the duty of the lawyer to live upto
the expectation of his client, so that the faith and belief of
the client on his lawyer may continue. It is also high time,
when the Bar must either accept its responsibility for
unnecessarily seeking adjournments, or must teach their
members, that having joined the noble profession, it is the
duty of every lawyer to devote full time to prepare the cases.
Under the hope and belief, that the lawyers would live upto
the expectations of the litigants as well as of the Court, this
Court, at this stage is not inclined to take any action in the
matter.
8. Accordingly, the prayer for adjournment was rejected.
9. It is submitted by counsel for applicant that applicant who is
the legally wedded wife of respondent No.1 has filed an application
under the Protection of Women from Domestic Violence Act. She also
filed an application under Section 23 of Domestic Violence Act for
grant of interim order for residence in shared house hold. However, the
trial Magistrate as well as the Revisional Court have rejected the said
application on the ground that since rent is also being paid by virtue of
an order passed under Section 125 of Cr.P.C. Therefore the applicant is
not entitled for order of residence in a shared house hold.
10. Challenging the order passed by the Courts below, it is
submitted by counsel for applicant that from plain reading of Section
20 (i) (d) of Act, 2005, it is clear that any order of monitory relief shall
not be limited to the order under or in addition to an order of
maintenance under Section 125 of Cr.P.C. Even otherwise, it is
submitted that merely because the Court had granted rent for residing
separately cannot be a ground to deny the interim order of residence in
shared house.
11. Per contra, the application is vehemently opposed by counsel
for respondents. A single ground was raised by Shri Saxena that since
the Court has passed an order for payment of rent to the applicant
under Section 125 of Cr.P.C., therefore she is not entitled for residence
in a shared house hold. However, the order of maintenance has not
been placed on record. It is further submitted that respondent No.1 has
filed a case for divorce, which is pending.
12. Heard the learned counsel for parties.
13. So far as the pendency of divorce petition is concerned, it is
admitted fact the marital ties of the applicant as well as respondent
No.1 have not been broken, therefore the provisions of Act, 2005
would continue to apply to the parries.
14. Order under Section 19 of the Domestic Violence Act is not
subject any other restriction. Even, if the respondents were directed to
pay rent for separate residence of the applicant, that would not make
the provisions of Section 19 of the Domestic Violence Act in
applicable. At the most, the respondents can always file an application
under Section 127 of Cr.P.C. for alteration of the maintenance amount.
15. It is further submitted by counsel for respondents that the
applicant has not given any document to prove that the property in
dispute is the shared house hold.
16. Accordingly, counsel for respondent was directed to point out
as to whether any reply to the application filed under Section 23 of the
Act, 2005 was filed or not.
17. Shri Saxena was not in a position to point out as to whether
any reply was filed or not but it submitted that since application filed
under Section 12 of the Domestic Violence Act, 2005 is pending,
therefore, the respondents would lead evidence in this regard.
18. Once, the applicant had claimed that the house in question is
the shared house hold where she had resided after her marriage, then it
was for the respondents to prima facie show whether it is not a shared
house hold. For the purposes of passing an interim order the reverse
burden of proof cannot be put on the complainant.
19. In absence of any material to show the accommodation is not
a shared house hold, the courts below committed a material illegality
by rejecting the application filed under Section 23 of the Act 2005,
which also provides that the aggrieved person can file an application
for grant of interim order in relation to the relief as provided under
Section 19 of the Act, 2005.
20. Accordingly, order dated 12.01.2023 passed in criminal
appeal no. 305/2022 and order dated 13.04.2022 in MJCR No.
2991/2019 are hereby set aside.
21. The respondents are hereby directed to allow the applicant to
reside in the shared house hold. They shall not cause any hindrance in
peaceful possession of the property and they shall not cause any harm
to the applicant during her stay in the shared house hold.
22. With aforesaid observations, the petition is allowed.
(G.S. AHLUWALIA)
JUDGE
VB*
VINAY KUMAR BURMAN
2024.05.15 14:38:05 +05'30'
