TMI Blog2019 (1) TMI 726X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 151 of CPC, is hereby set aside - petition allowed. - MP No.1887/2017 - - - Dated:- 9-1-2019 - G.S. Ahluwalia J. For the Petitioner : Shri Gaurav Mishra, Advocate For the Respondent : Shri Pratip Visoriya, Advocate ORDER This petition under Article 227 of the Constitution of India has been filed against the order dated 6/12/2017 passed by the Civil Judge, Class-I, Bhander, District Datia in Civil Suit No.29A/2014. Before considering the facts of the case, this Court feels it appropriate to consider certain incidents, which have taken place in the Court at the time of argument of this case. In the first half of the day when the case was called, the associate counsel of the counsel for respondent no.1 prayed for time to argue the matter. Since this petition is pending from 2017 and the further proceedings of the civil suit have been stayed, therefore, this Court refused to adjourn the matter and at the request of the counsel for respondent no.1, the matter was passed over. At 2:30 PM when the case was taken up, Shri Pratip Visoriya, counsel for respondent no.1, appeared and started his arguments by saying that in the first half of the day his ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the simple reason that if respondent no.1 is a rustic villager being an illiterate person, then the counsel for respondent no.1 could have given him in writing the details of the documents, which he wants to go through before preparation of the case and respondent no.1 could have informed his local counsel for obtaining the copies of the said documents. 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, impropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tes. 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 lan 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. The present petition has been filed against the order dated 6/12/2017, by which the application filed by the petitioner under Section 151 of CPC seeking leave of the Court to send the disputed thumb impression to the handwriting expert in rebuttal to the handwriting expert's report submitted by respondent no.1/plaintiff. It is the case of plaintiffs/respondents no.1 and 2 that the plaintiff no.1/respondent no.1 is an illiterate person having poor eye vision and since the respondent no.1 was in need of certain money, therefore, he prayed for grant of certain loan and by taking advantage of the illiteracy and poor eye vision of respondent no.1, the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication filed by the respondent no.1 for getting thumb impression on the agreement examined from the handwriting expert was allowed by the trial court and accordingly, the report of the handwriting expert has been placed on record. Under these circumstances, this Court is of the considered opinion that the trial court cannot take away the right of the petitioner\defendant to produce the report of the handwriting expert in rebuttal of the report of the handwriting expert filed by the respondent no.1/plaintiff. Thus, in the light of the judgment passed by the Division Bench of this Court in the case of Usha Sharma (supra), this Court is of the considered opinion that the order dated 6/12/2017, so far as it relates to rejection of application under Section 151 of CPC, is hereby set aside. Accordingly, the application filed by the petitioner under Section 151 of CPC for producing his report of the handwriting expert in rebuttal of the report of the handwriting expert filed by the respondent no.1/plaintiff is allowed. The trial court is directed to proceed further in accordance with law. The interim order dated 19/1/2018 is hereby recalled. The petition is, accordingly, allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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