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2000(7) Supreme 569
SUPREME COURT OF INDIA
(From Delhi High Court)
K.T. Thomas & R.P. Sethi, JJ.
Ramon Services Pvt. Ltd. -Petitioner
versus
Subhash Kapoor & Ors. -Respondents
Civil Appeal No. 6385 of 2000
(Arising out of SLP (C) No. 19499 of 1999)
Decided on 14-11-2000
Counsel for the Parties :
For the Appearing Parties : V.K. Makhija, M.N. Krishnamani, Sr. Advocates, Dr. J.P. Verghese, S.P. Sharma, Abhay Makhija, Navin Chawla, Vipin Nair, Advocates.
Per K.T. Thomas, J.
When the advocate who was engaged by a party was on strike there is no obligation on the part of the court either to wait or to adjourn the case on that account. Time and again this Court has said that an advocate has no right to stall the court proceedings on the ground that advocates have decided to strike or to boycott the courts or even boycott any particular court. (Para 5)
But the fact remains that appellant was set ex-parte due to the absence of the appellant and his counsel in the court when the case was taken up for hearing. In the special circumstances of this case we are inclined to set aside the ex-parte order dated 26.8.1998, on some terms. Appellant shall pay a sum of Rs. 5000/- as costs to the respondent/plaintiff within one month from today and on such payment (or deposit with the trial Court) the ex-parte order dated 26.8.1998 would stand set aside. (Paras 10 & 11)
It is not correct to say that the courts had earlier sympathized with the Bar and agreed to adjourn cases during the strikes or boycotts. If any court had adjourned cases during such periods it was not due to any sympathy for the strikes or boycotts, but due to helplessness in certain cases to do otherwise without the aid of a counsel. Nor do we concede to the contention that this Court declared the legal position only when Mahabir Prasad Singh v. Jacks Aviation, 1999(1) SCC 37 was decided that strikes or boycotts are illegal. Therefore, we permit the appellant to realise half of the said amount of Rs. 5000/- from the firm of advocates M/s. B.C. Das Gupta & Co. or from any one or its partners. Initially we thought that the appellant could bepermitted to realise the whole amount from the said firm of advocates. However, we are inclined to save the firm from bearing the costs partially since the Supreme Court is adopting such a measure for the first time and the counsel would not have been conscious of such a consequence befalling them. 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, he 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. But the advocate can not get absolved merely on the ground that he did not attend the court as he or his association was on a strike. If any advocate claims that his right to strike must be without any loss to him but the loss must only be for his innocent client such a claim is repugnant to any principle of fair-play and canons of ethics. So when he opts to strike work or boycott the court he must as well be prepared to bear at least the pecuniary loss suffered by the litigant client who entrusted his brief to that advocate with all confidence that his cause would be safe in the hands of that advocate. (Paras 14 & 15)
In all cases where court is satisfied that the ex-parte order (passed due to the absence of the advocate pursuant to any strike call) could be set aside on terms the court can as well permit the party to realise the costs from the advocate concerned without driving such party to initiate another legal action against the advocate. It is open to the court as an alternative course to permit the party (while setting aside the ex-parte order or decree earlier passed in his favour) to realise the cost fixed by the court for that purpose, from the counsel of the other party whose absence caused the passing of such ex-parte order, if the court is satisfied that such absence was due to that counsel boycotting the court or participating in a strike. (Paras 16 & 17)
Per Sethi, J. (Concurring yet with reservation on the observation of Thomas, J. as to Court s in past were not agreeing to dismiss case for default during strike or boycott).
Persons belonging to the legal profession are concededly the elite of the society. They have always been in the vanguard of progress and development of not only law but the Polity as a whole. Citizenary looks at them with hope and expectations for traversing on the new paths and virgin fields to be marched on by the society. The profession by and large, till date has undoubtedly performed its duties and obligations and has never hesitated to shoulder its responsibilities in larger interests of the mankind. The lawyers, who have been acknowledged being sober, task oriented, professionally responsible stratum of the population, are further obliged to utilise their skills for socio-political modernization of the country. The lawyers are a force for the preservance and strengthening of constitutional government as they are guardians of the modern legal system. (Para 20)
After independence the concept of social justice has become a part of our legal system. This concept gives meaning and significance to the democratic ways of life and of making the life dynamic. The concept of welfare state would remain in oblivion unless social justice is dispensed with. Dispensation of social justice and achieving the goals set forth in the constitution are not possible without the active, concerted and dynamic efforts made by the person concerned with the justice dispensation system. The prevailing ailing socio-economic - political system in the country needs treatment which can immediately be provided by judicial incision. Such a surgery is impossible to be performed unless the Bench and the Bar make concerted effort. The role of the members of the Bar has thus assumed great importance in the post independent era in the country. (Para 21)
Generally strikes are antithesis of the progress, prosperity and development. Strikes by the professionals including the Advocates cannot be equated with strikes undertaken by the industrial workers in accordance with the statutory provisions. The services rendered by the advocates to their clients are regulated by a contract between the two besides statutory limitations, restrictions and guidelines incorporated in the Advocates Act, the Rules made thereunder and Rules of procedure adopted by the Supreme Court and the High Courts. Abstaining from the courts by the Advocates, by and large, does not only affect the persons belonging to the legal profession but also hampers the process of justice somtimes urgently needed by the consumers of justice, the litigants. Legal profession is essentially a service oriented profession. The relationship between the lawyer and his client is one of truest and confidence. With the strike by the lawyers, the process of court intended to secure justice is obstructed which is unwarranted under the provisions of the Advocates Act. Law is no trade and briefs of the litigants not merchandise. (Paras 22 & 23)
In the light of the consistent views of the judiciary regarding the strike by the advocates, no leniency can be shown to the defaulting party and if the circumstances warrant to put such party back in the position as it existed before the strike. In that event, the adversary is entitled to be paid exemplary costs. The litigant suffering costs has a right to be compensated by his defaulting counsel for the costs paid. In appropriate cases the court itself can pass effective orders, for dispensation of justice with the object of inspiring confidence of the common man in the effectiveness of judicial system. In the instant case respondent has to be held entitled to the payment of costs, consequent upon the setting aside of the ex-parte order passed in his favour. (Paras 27)
Though a matter of regret, yet it is a fact, that the courts in the country have been contributory to the continuance of the strikes on account of their action of sympathising with the Bar and failing to discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking advocates. I find myself in agreement with the submission of Sh. M.N. Krishnamani, Senior Advocate that the courts were sympathising with theBar by not agreeing to dismiss the cases for default of appearance of the striking advocates. I have my reservations with the observations of Thomas, J. that the courts had not been sympathising with the Bar during the strikes or boycotts. Some courts might have conducted the cases even during the strike or boycott periods or adjourned due to helplessness for not being in a position to decide the lis in the absence of the counsel but majority of the courts in the country have been impliedly sympathisers by not rising to the occasion by taking positive stand for the preservation of the high traditions of law and for continued restoration of the confidence of the common man in the institution of judiciary. It is not too late even now for the courts in the country to rise from the slumber and perform their duties without fear or favour particularly after the judgment of this Court in Mahabir Singh s case, 1999(1) SCC 37. Inaction will surely contribute to the erosion of ethics and values in the legal profession. The defaulting courts may also be contributory to the contempt of this Court. (Paras 28)
(ii) Advocate-Duties and liabilities to clients-Non-appearance due to Advocates strike or boycott and consequent dismissal of suit-Court mulcting cost on party to set aside ex parte order-Advocate would also be answerable for consequence suffered by party if non-appearance was solely on ground of strike call-When Court mulcts party with cost for failure of his Advocate to appeal same Court has power to permit party to realise costs from Advocate concerned-Party could also sue Advocate for damages. (Paras 15 to 17 & 20 to 26)
JUDGEMENT
Thomas, J.-Leave granted.
2. Another ticklish issue concerning legal profession has winched to the fore which, perforce, has to be decided by us in this case. Should a litigant suffer penalty for his advocate boycotting the court pursuant to a strike call made by the association of which the advocate was a member? The question arose in this case after the suit was decreed ex parte by the trial Court in consequence of the non-appearance of the counsel on a day fixed for hearing, on the premise of the strike call.
3. Appellant-company was in occupation of a building as tenant at Barakhamba Road, New Delhi. A suit was filed against the appellant for eviction from the building and other consequential reliefs which was resisted by the appellant by raising various contentions. Issues in the suit were framed by the court and the case was posted to 26.8.1998 for trial. None of the advocates belonging to the firm of lawyers which was engaged by the appellant did not appear in the court on the day because the advocates were on a strike called by the advocates association concerned. As nobody for the appellant was present the court set the defendant ex-parte and evidence of the plaintiff was recorded. Appellant whose place of business was in Mumbai, on coming to know of the developments, applied under Order 9 Rule 7 of the Code of Civil Procedure (for short the "Code"). But the application was dismissed and eventually the suit was decreed on 13.11.1998. Thereafter, appellant filed an application to set aside the ex-parte decree. The said application was dismissed by the trial Court, for which the following reasoning, inter alia, has been stated :
"It is settled law that strike or boycott by the advocates is no ground for adjournment. Hon ble Supreme Court in Mahabir Prasad Singh v. Jacks Aviation (1998-RLR-SC-644) has held that all the courts have to do judicial business during court hours. It is the solemn duty of every lawyer to attend the court. The defendant and the counsel very well know that the case was fixed on 26.8.98 for plaintiff s evidence. Counsel for the defendant (at least 8 counsel had been engaged by the defendant) and the defendant deliberately did not appear on 26.8.98. There is no bona fide or reasonable ground put forward by the defendant or their counsel for non-appearance. They were knowing the consequences of non-appearance. I therefore, find no ground in allowing the application under Order IX Rule 16 CPC. The application is hereby dismissed with costs."
4. Appellant thereafter approached the High Court with an appeal against the aforesaid order. The High Court concurred with the reasoning of the trial Court and dismissed the appeal. Learned single judge while dismissing the appeal stated thus:
"In my considered opinion, the proposition of law as laid down in the decision of the Supreme Court in Mahabir Prasad Singh s case (1999(1) S.C.C. 37) squarely applied to the facts of thepresent case. There was negligence and total lack of bona fide on the part of the defendants and therefore, they are not entitled to any relief in the present appeal. The appeal stands dismissed as without any merit leaving the parties to bear their own costs."
5. We have no doubt that the legal position adumbrated by the Additional District Judge as well as the High Court cannot be taken exception to. When the advocate who was engaged by a party was on strike there is no obligation on the part of the court either to wait or to adjourn the case on that account. Time and again this Court has said that an advocate has no right to stall the court proceedings on the ground that advocates have decided to strike or to boycott the courts or even boycott any particular court. Vide U.P. Sales Tax Service Association v. Taxation Bar Association, Agra & Ors.1; K. John Koshy & Ors. v. Dr. Tarakeshwar Prasad Shaw2; Mahabir Prasad Singh v. Jacks Aviation3; and Koluttumottil Razak v. State of Kerala4.
6. Now the party says that his absence may be vie
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