Important Points
1. Where application for transfer filed under Section 151 was dismissed as remedy not lay under that section revision thereagainst is not maintainable in view of specific interdict embodied in proviso to Section 115(1).
2. A change of court (transfer of case to another court) is not allowable merely because the other side too has no objection for such change.
3. If a counsel does not want to appear in a particular court for justifiable reason professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel; no advocate can ask the court to avoid a case on the ground that he does not want to appear in that court.

Headnote:(i) Code of Civil Procedure, 1908-Section 115 read with Section 151 - Revision - Scope of power-Respondent filed application before trial Court under Section 151 to transfer case to another Court-Reason stated that counsel for respondent cannot appear before trial Court in view of Bar Association’s resolution to boycott the Court-Application dismissed holding that there is no provision under Section 151 for transfer of case-High Court entertaining revision-Not justified-Order in question clearly not revisable in view of specific interdict embodied in proviso to Section 115(1).
       Held : The High Court has committed a jurisdictional error in entertaining the revision petition filed by the respondent challenging the order dated 21.5.1998. That order is clearly not revisable by the High Court in view of the specific interdict embodied in the proviso to Section 115(1) of the Code. Under the same sub-section, a High Court is empowered to call for the records of any case which has been decided by any court subordinate thereto, if it had exceeded or failed to exercise the jurisdiction vested in it, or had acted illegally or with material irregularity. In such cases the High Court has power to make such order as it thinks fit. The restriction against exercise of such a general power has been incorporated in the proviso which was inserted in the sub-section by the CPC Amendment Act of 1976. Out of the two clauses in the proviso the former has no application to the order which has been challenged in the High Court because even if the application of the respondent filed on 21.5.1998 was granted the suit would not have been finally disposed of. The latter clause could be resorted to only if that order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the respondent. Thus, even if such an order passed by the subordinate court has any illegality or is affected by material irregularity, the High Court will not interfere unless the said order, if allowed to stand, would occasion a failure of justice or its effect would be infliction of irreparable injury to any party. (Paras 8 & 9)
       The order passed by the Additional District Judge on 21.5.1998 has no legal infirmity, much less any scope for occasioning failure of justice. Question of that order causing any irreparable injury does not arise particularly because the said order was byproduct of the unwholesome strategy adopted by the respondent’s counsel in abstaining from the court and reporting that he would not attend that court in future. The party who brought about such a situation cannot be heard to complain that an order was passed consequently. The High Court has committed grave error in entertaining the revision petition and passing the impugned order. Accordingly we quash the aforesaid revisional proceedings. (Paras 17 & 18)
       (ii) Code of Civil Procedure, 1908-Section 24-Transfer of cases-No objection for change of Court i.e. transfer of case to another Court by other side does not entitle a party to get case transferred.
       Held : A change of Court is not allowable merely because the other side too has no objection for such change. Or else, it would mean that when both parties combine together they can avoid a court and get a court of their own choice. (Para 19)
       (iii) Advocate-Duty to Court and litigant-Boycott call by Bar Association-Counsel for a litigant filing transfer of case to another court stating that counsel could not appear before Court in view of resolution of Bar Association-No advocate can ask court to avoid a case on ground that he does not want to appear in that Court.
       Held : Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott all of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear. (Para 1)
       If any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel. But retaining the brief of his client and at the same time abstaining from appearing in that court, that too not on any particular day on account of some personal inconvenience of the counsel but as a permanent feature, is unprofessional as also unbecoming of the status of an advocate. No court is obliged to adjourn a cause because of the stike call given by any Association of Advocates or a decision to boycott the courts either in general or any particular court. It is the solemn duty of every court to proceed with the judicial business during court hours. No court should yield to pressure tactics or boycott calls or any kind of browbeating. 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 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.
        (Paras 14 & 16)

Judgment

Thomas, J.-Leave granted.

Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott all of the Bar, or tactics of filibuster adopted by any member thereof. High Courts are duty bound to insulate judicial functionaries within their territory from being demoralised due to such onslaughts by giving full protection to them to discharge their duties without fear. But unfortunately this case reflects apathy on the part of the High Court in affording such protection to a judicial functionary who resisted, through legal means, a pressure strategy slammed on him in open court.

2. It all happened in the following manner:

A civil suit for recovery of possession of a building was filed by the appellant in the court of the Additional District Judge, Tis Hazari, Delhi (Shri S.N. Dhingra’s court). Respondent filed written statement in the suit. Taking advantage of certain admissions made in the written statement, appellant preferred an application under Order XII Rule 6 of the Code of Civil Procedure (for short ‘the Code’) for pronouncing a judgment, having regard to such admissions and for passing a decree for recovery of possession of the suit premises. Respondent filed objections to the aforesaid application and prayed for its dismissal. When the application came up for argument on 21.5.1998, respondent filed a strange petition seeking transfer of the case by the Judge suo motu. How strange was that petition can be shown by extracting the material portion of it hereunder:

“That the counsel for the defendant is a member of Delhi Bar Association and recently vide Resolution dated 15.5.1998 Delhi Bar Association has boycotted the appearance of its members in any case before this Hon’ble court. That the counsel for the defendant being a member of the Dehli Bar Association is bound by all the resolutions passed by the executive Committee of Delhi Bar Association and in such circumstances the counsel for the defendant is not in a position to appear in the said case before this Hon’ble Court. That due to the said boycott call, the defendant is taking necessary steps for moving an application under Section 24, CPC before the Hon’ble District Judge, Delhi for the transfer of the aforesaid case, in case the Hon’ble Court is not inclined to suo moto transfer the said case. That serious prejudice will be caused to the interest of the defendant if any adverse order is passed on account of non-appearance of the counsel for the defendant and/or the defendant. That the said boycott call by the Delhi Bar Association could not be conveyed to the defendant and in such circumstances the defendant is also not in a position to cause personal appearance in the said matter.

It is, therefore, most respectfully prayed that this Hon’ble Court may be pleased to suo moto transfer the aforesaid matter or in the alternative this Hon’ble Court may be pleased to adjourn the matter to some future date without passing any adverse order so as to enable the defendant to move necessary application before the Hon’ble District Judge, Delhi.”

The counsel for the defendant who filed the said petition did not himself appear in the court for addressing arguments on 21.5.1998 nor did he depute any other advocate on his behalf. Learned Additional District Judge then passed the following order :

“This application under Section 151 for transfer of the case has been made. There is no provision under Section 151 for transfer of case. Transfer application lies before learned District Judge under Section 24 CPC. The application is hereby dismissed. Written arguments have been filed on behalf of plaintiff on application under Order XII Rule 6. To come up for orders on 30.5.1998.”

3. A revision petition was filed by the respondent before the Delhi High Court in challenge of the aforesaid order. A Single Judge of the High

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1998 Supreme(SC) 1146

Cases Referred (2)