Raj Rani and Another vs Vijay Rani and Another

Shiv Narayan Dhingra, J.—The petitioner has filed this petition under Article 227 of the Constitution of India against the order dated 12.8.2005 as well as against the order dated 7.3.2008 whereby the review application made by the petitioner against the order dated 12.8.2005 was dismissed. It will be fruitful to read the orders.

On 12.8.2005 the suit was fixed before the learned Civil Judge and learned Civil Judge passed following order:

Suit No. 516/03

12.08.05

Present: Counsel for the parties along with plaintiff in person Today matter is fixed for RPE and it is last opportunity for defendant to cross examine the PW, since even on last date defendant failed to appear till 12.30 p.m. but still last opportunity was granted for today. This is an older matter pending since 1997. In this case PE was filed on 28.04.2005 and counsel for defendant is requested to commence his cross examination of the PW on the affidavit and the objections, if any, can be recorded and it will also be subject to outcome of application since though, the Court is ready to hear arguments even on the application now also but defendant seeks time. However, counsel for defendant refuses to cross examine the PW present and submits that the matter be adjourned today and he be given time to file a formal reply to application of plaintiff u/s 151 CPC.

On the other hand, it is submitted by plaintiff that this is only a delay tactics on behalf of defendant and the matter is an old matter and defendant be not granted a date on this pretext.

It is clear that though none appeared on last date of hearing for defendant when application was filed but still defendant in interest of justice is granted an opportunity to file the formal reply. However, it is mandate of amended CPC that after trial has commenced the evidence must be completed expeditiously and the procedural delays must not be allowed to stop the evidence in between. In fact with a view to expedite completion of evidence, the Division Bench of Hon''ble High Court in ILR(2003) 1 Del 23 has held that defendant can be asked to file his affidavit in evidence even before he has cross examined the plaintiff witnesses. It was observed that method of evidence by affidavit has been devised for convenience of the parties to save their time and that of court.

In present case, today was last opportunity for cross examination of PW and in view of the fact that this is an old matter right of defendant to cross examine the PW is closed. It is submitted that no more PE is to be lead. Hence, PE is also closed. Counsel for defendant submits time and again that the Court must be sure before passing the order since he intends to move to Hon''ble superior courts, he further submits that his each and every submission must be recorded. Now at this stage counsel for defendant seeks time to file application about issues having been framed on 03.03.05 also, after induction of a new defendant No. 3. However, it is clear that no such application was moved or objection made on previous dates though nearly six months have passed. But counsel for defendant submits that he will move formal application in this regard. Let it be moved with advance copy to OP. Now to come up for DE and FP, advance copy of the affidavit of DW be supplied at least one week before NDOH, reply to applications be also filed with copy to OP. Though it is an old case but a lightly longer date is granted in interest of justice, as requested so that defendant can avail of legal remedies before Hon''ble Superior Courts. Now to come up on 30.09.2005.

(Jitender Mishra)

Civil Judge, Delhi

12.08.2005

After the above order was dictated by the Court to the steno and while the Civil Court was busy in dealing with other cases fixed on that day, the Counsel for the petitioner and his associates gheoroed the Court and wanted that the file should be given to the Counsel for inspection, knowing fully well that the Court of Civil Judge was working only with one steno and it was not possible to type every order simultaneously. However, the Counsel insisted that inspection should be allowed on the same day immediately and what was the conduct of the Counsel was noted down by the Civil Judge and the order reads as under:

12.08.2005

3.30 p.m.

At this stage, an inspection application is moved through counsel on behalf of defendant No. 2. The case was listed today only and orders are not typed since there is only one steno and besides regular work of daily orders, evidence, he has to take dictation in final order and miscellaneous order, there is also extra work due to day being an execution day. The order in case was also pronounced in the presence of counsel, hence, it was submitted that orders may be inspected at later time, however, counsel who has also brought a few other gentlemen is adamant and hampers judicial work and interfere in work of steno and Reader. He forces the Court to retire to chamber for judicial work but even there he and his colleagues are harassing the Court and staff, now he submits that court must scribble in writing the reasons for the refusal. Since he will go to learned DJ in between dictation and the scene and harassment, the court scribbles down the reason but the counsel and his group lay siege to court room and are threatening the Reader and forcing him to shuttle very frequently to chamber, demanding that court must stop other work and their work must be allowed. All the requests have no effect on them. Judicial work has come to a standstill.

Sd/- C.J.

Against these two orders of 12.8.2005, the petitioner preferred an application under Order 47 Rule 1 read with Section 114 and Section 151 CPC. This application was dismissed vide order dated 7.3.2008 by the successor of the Civil Judge, who observed that the successor Civil Judge had no power to delete the remarks as prayed nor there was any error apparent on the face of record calling for review of the order. In the review application the contemptuous allegations were made against the Civil Court alleging that it acted in vengeance.

It is apparent that when the Civil Judge was in the process of dictating the order, the Counsel for the defendant/petitioner had time and again told the Civil Judge that he was going to move the superior Courts against whatever order he passed therefore, he should be very careful and wanted that each and every submission of the Counsel (howsoever frivolous) must be recorded. However, instead of approaching a superior Court against the order of the Civil Judge, the Counsel made a review application before the same Court and when the review application was dismissed, he has approached this Court after about three years of passing the orders. It is abundantly clear that the only effort of the Counsel for the defendant was to prolong the case, to see that the case did not proceed further even if he had to hold the Court as captive and he acted with this motive in mind. A review lies only on the ground that there was error apparent on the face of the record. The proceedings of the day recorded by the Court to show as to what transpired on that day and how it transpired, cannot be amenable to review. In the guise of application for review, a prayer cannot be made for recalling the order. Even an error of law cannot be a ground for review, only a manifest error can be the ground for review. Despite the settled law as to what can be the grounds for review, the petitioner''s counsel who had threatened the Court and not allowed the Court to function for a part of the day did not approach the next higher Court either complaining against the conduct of the Civil Court or challenging the legality of the order. After dragging the case for three years in the review, he has now approached this Court under Article 227 of the Constitution of India against the order passed by the Review Court and against the initial orders, making allegations against the judge and giving explanation for his conduct.

While in the legal profession there are certain professionals, who expertise in different branches of law and take pride in that, there are others who expertise in stalling the Courts and the cases and are known for that and they take pride in that. Such advocates are engaged only to see that the case does not proceed further and can be dragged as long as possible. They are known as ''adjournment expert'' advocates.

One of the grounds the petitioner has stated for challenging the order of the trial Court is that the order passed by the trial Court was arbitrary and contrary to law. However, the Counsel for the petitioner failed to point out as to which law was violated by the trial Court. Is it law of the land that if the advocate does not want to cross examine the witness he has a right to stall the Court and right to threaten the Court that he would go to the superior Court if the case is not adjourned'' The advocate could have cross examined the witness and got his objections recorded against the affidavit of testimony filed in examination-in-chief, during cross-examination. Nobody could have stopped the advocate from making necessary applications subsequently. The advocate cannot insist upon the Court that he should be first allowed to go and bring an application and the Court must wait till he brings his application and his application must be decided first and then the Court should ask him to cross examine the witness. The other ground taken is that the order caused prejudice to the petitioner and is liable to be set aside. I find no reason to allow this petition on this ground even.

If a party chooses to engage an advocate, who has no time to conduct his case and who does not want to cross examine the witness and threatens the Court, an order passed by the Court has to be faced by such a party. An order refusing to adjourn the case under threats of an advocate cannot be set aside because it has caused prejudice to the party. Every order passed by a Court goes in favour of one party and simultaneously goes against the other party. An order can be set aside only on the ground that it is contrary to law and not on the ground that it caused prejudice to the party.

The third ground is that the Court acted in a biased manner and therefore, the order was liable to be quashed. If a Judge acts to uphold the dignity and majesty of the Court and directs that the case must proceed in accordance with law, it does not mean that the Court acted in bias. The Civil Court in this case only wanted that the witness, who was present for cross examination must be cross examined on that day and all objections of the petitioner regarding admissibility of the evidence be recorded, but the Counsel was adamant to see that the case was adjourned. The insistence of the Court that the witness must be cross examined does not amount to bias.

The next ground is that the Civil Judge acted in haste and did not appreciate the facts and circumstances of the case. Asking an advocate to cross examine the witness on the day when the witness is present does not amount to acting in haste. Not budging to the pressure and refusing to get cowed down by the threats and tactics of the advocate and trying to maintain the dignity and majesty of the Court does not amount to acting in haste. The Court is not supposed to act under threat and fear. Every Court is supposed to perform its duty fearlessly. If the Courts start acting under the threats of such advocates, who can muster physical strength or abuse their professional skill, the entire judicial system shall crumble. The Civil Judge in this case must be appreciated that he refused to cow down and insisted that the witness, who was present must be cross examined on that day. This is what law requires and this is what propriety requires.

The allegations made by the petitioner regarding the Court not acting in a transparent manner and having not dictated the order in open Court or in the presence of both the parties are malicious and baseless allegations made by the petitioner deliberately to malign the judge and such allegations cannot be entertained, that also, when neither the Counsel nor the party immediately brought these facts to the notice of this Court having supervisory powers over the lower courts. The Counsel submitted that a party has a right to engage as many Counsel as it likes and the trial Court unnecessarily insisted upon the presence of the initial advocate. True, a party has a right to engage as many Counsel as it likes but these Counsel have to remain under the discipline of law. The party cannot engage Counsel to ghereo the Court and cow down the Court. Where a party engages many Counsel, it cannot also take an excuse that the main Counsel is busy or he is not available on that day, etc. Each and every Counsel engaged by the party is equally responsible for the prosecution of the case and to maintain the decorum of the Court.

The plea of the Counsel for the petitioner that the Court below exercised jurisdiction, vested in it, illegally and with material irregularity is also baseless. The Court conducting the trial is the master of the situation. The Counsel for a party cannot dictate to the Court as to whether the witness would be examined or not. The Counsel can only make his submissions. If submissions are not accepted, he is bound to perform his professional duty as per law and cannot thrust his opinion or desire on the Court. He has the liberty to approach the next higher Court but in the garb of saying that his pleas are not being recorded, the Counsel cannot be allowed to stall the proceedings of the Court either by lung power or by show of muscle power of his associates. After three years, the counsel cannot take the plea that the Court below did not record the proceedings correctly or his objections were not recorded.

The plea of the petitioner''s counsel that the submissions of the petitioner were not correctly understood by the Court below and the order dated 12.8.2005 was passed because of misunderstanding is baseless. The Court below passed the order recording what transpired in the Court.

One of the biggest reasons of huge pendency in the Courts is that a lot of Court''s time is wasted in futile adjournments. A civil case which should normally be over within a year''s time is dragged to a number of years, sometimes for 20 to 40 years. Lot of Court''s time is wasted when no fruitful work is done on the dates, the case is fixed and the adjournments are sought on one or the other ground. These adjournments are sought because one party is always interested in adjournments and in prolonging the case, as prolonging the case itself results in substantial benefit to the party as it frustrates the effort of the other party in getting the dispute adjudicated through Court in time. Recently the Hon''ble Supreme Court in Rajindera Singh (Dead) through Lrs. and Ors. v. Prem Mai and Ors. 2007(2) RLR 546 observed as under:

Before parting with this case we would like to express our anguish at the delay in disposal of cases in our law courts. The present case is a typical illustration. A suit filed in 1957 has rolled on for half a century. It reminds one of the case Jarndyce v. Jarndyce in Charles Dickens'' novel ''Bleak House'' which had rolled on for decades, consuming litigants and lawyers alike.

We may quote a passage from ''Bleak House'' written in Dickens'' inimitable style:

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated, that no man alive knows what it means. The parties to it understand it least; but it has been observed that no two Chancery lawyers can talk about it for five minutes, without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce, without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant, who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled, has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps, since old Tom Jarndyce in despair blew his brains out at a coffee house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.

Is this not descriptive of the situation prevailing in India today

People in India are simply disgusted with this state of affairs, and are fast losing faith in the judiciary because of the inordinate delay in disposal of cases. We request the concerned authorities to do the needful in the matter urgently to ensure speedy disposal of cases if the people''s faith in the judiciary is to remain.

In view of my above discussion, I find no merits in this petition.

The petition is hereby dismissed with cost of Rs. 20,000/- to be deposited in Delhi High Court Legal Aid Committee.