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2021 Supreme(Mad) 549
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S. VAIDYANATHAN, J.
V.K. Kumaresan - Petitioner
Versus
P. Jayaseelan & Another - Respondent
C.M.P.No. 6514 of 2020 in Tr.C.M.P.No. 942 of 2019
Decided On : 03-02-2021
For the Petitioner:R. Sankarasubbu, Advocate.
For the Respondents: M/s. Venkatesh Mahadevan, C.K. Chandrasekar, Bar Council.
The duty of the lawyer to protect the client and the abuse of court process by the petitioner.
Headnote:
Civil Procedure Code - Setting aside ex parte order - Order 9 Rule 10 & 13 r/w 151 - Tr.C.M.P.No.942 of 2019, C.M.P.No.25642 of 2019 - The court discussed the abuse of process of the court, the duty of the lawyer to protect the client, and the conduct of the petitioner/tenant/advocate. The court also referred to the Bar Council of India Rules under Section 49(1)(c) of the Act.
Fact of the Case:
The petitioner, an advocate and tenant, sought to set aside an ex parte order for non-appearance. The court found that the petitioner had vacated the premises after a long delay and had engaged in a clandestine manner to defeat the court's orders.
Finding of the Court:
The court found the petitioner's conduct to be an abuse of the court process and an act unbecoming of a lawyer. It directed the Bar Council to take action against the petitioner for misconduct and urged other associations not to defend such dishonest tenants.
Issues: Setting aside ex parte order, abuse of court process, duty of lawyer to client, conduct of advocate as a tenant
Ratio Decidendi: The court emphasized the duty of the lawyer to protect the client but also condemned the petitioner's conduct as an abuse of the court process and unbecoming of a lawyer.
Final Decision: The Civil Miscellaneous Petition stands closed, and the Bar Council is directed to take action against the petitioner for misconduct.
JUDGMENT :
Prayer: This Petition is filed under Order 9 Rule 10 & 13 r/w 151 of Civil Procedure Code, to set aside the exparte order passed in Tr.C.M.P.No.942 of 2019 and C.M.P.No.25642 of 2019 date 19.02.2020 passed by this Court for non appearance of the counsel for petitioner on 19.02.2020 and disposed on merits to secure the ends of justice.
When the matter is taken up for hearing today, learned counsel for the petitioner has submitted that the petitioner has already vacated the premises and the vacant possession has been handed over to the land lord. The said submission has been affirmed by the learned counsel for the respondent, stating that the possession has been taken with the help of Police.
2. It is appropriate to recollect that this Court heard Tr.C.M.P.No.942 of 2019 in detail on several occasions and after conclusion of the argument on either side, posted it for pronouncing orders on 19.02.2020. On the said date, there was no appearance on behalf of the petitioner, which forced this Court to mark “No Appearance” for the petitioner in the cause title of the order dated 19.02.2020. It does not mean that the petitioner was not at all heard.
3. Tr.C.M.P.No.942 of 2019 was disposed of by this Court as early as on 19.02.2020, with a direction to the petitioner herein / tenant, who is an Advocate, to vacate the premises within two weeks. It is very unfortunate that the petitioner took one long year to comply with the said order. However, this Court is of the view that the approach adopted by the petitioner / Advocate / Tenant in a clandestine manner to defeat the orders of this Court, is clear abuse of process of the Court. Under the pretext that a Review Application has been filed (may be true), this matter (Miscellaneous Petition) was dragged on by the petitioner to deceive the Court and the landlord, as the petitioner / tenant has not furnished either the SR number of the Review Application or the date on which the said Review Application was purported to have been filed to review the order in Tr.CMP., till the date of signing this order.
4. Though it may be the duty of the Lawyer, viz., Sankarasubbu, learned counsel for the petitioner in this petition, to protect the dishonest tenant, namely, V.K.Kumaresan, Advocate, the way in which the matter was dragged on by the learned counsel for the petitioner in this petition, is not appreciated and is deprecated. This Court never expected Sankarasubbu, learned counsel for the petitioner in this petition to have protected the person like the petitioner herein, knowing well about his conduct on going through the order in the Tr.CMP. The petitioner / Tenant / Advocate, after knowing the mind of this Court, had also written a letter dated 17.02.2020 to the Hon'ble Chief Justice, apart from addressing it to the Registrar of this Court, thereby he attempted to adopt the tactics of forum shopping, which is purely an act of unbecoming of a lawyer, undermining the profession. By the time the letter could reach my hand, I had already pronounced the order on 19.02.2020 in Tr.CMP.
5. However, in view of the subsequent development and also considering the fact that the petitioner / tenant has vacated the premises, which has been duly affirmed by the learned counsel for the respondent, this Court is of the view that no further order is required to be passed in this petition, except the following.
6. The 2nd respondent / Bar Council shall take action against the petitioner / Advocate and proceed further for the misconduct on the complaint. In case of issuance of any notice to the petitioner herein by the Bar Council, the enquiry shall be conducted on a day-to-day basis without adjourning the matter beyond three days at any point of time and bring the issue to a logical conclusion. It is also open to the 1st respondent herein to proceed against the petitioner in accordance with law.
7. It is very saddening to note that it is a shame on the part of an Advocate to refuse to vacate the premises, when
