Noor Mohammed Vs. Jethanand and another
EmailAppeal: Special Leave Petition (C) No. 25848 of 2011
[From the Judgements and Orders dated 09.05.2011 of the High Court of Rajasthan at Jodhpur in S.B. Civil Second Appeal No. 207 of 2001]
[From the Judgements and Orders dated 09.05.2011 of the High Court of Rajasthan at Jodhpur in S.B. Civil Second Appeal No. 207 of 2001]
Petitioner: Noor Mohammed
Respondent: Jethanand and another
Apeal: Special Leave Petition (C) No. 25848 of 2011
[From the Judgements and Orders dated 09.05.2011 of the High Court of Rajasthan at Jodhpur in S.B. Civil Second Appeal No. 207 of 2001]
[From the Judgements and Orders dated 09.05.2011 of the High Court of Rajasthan at Jodhpur in S.B. Civil Second Appeal No. 207 of 2001]
Judges: K.S. Radhakrishnan & Dipak Misra, JJ.
Date of Judgment: Jan 29, 2013
Appearances:
Appearances
Mr. H.D. Thanvi, Mr. Shashnak Pareek, Mr. Sarad Kumar Singhania, Advocates, for the Petitioner.
Mr. Abhinav Mukerji, Advocate, for the Respondents.
Mr. H.D. Thanvi, Mr. Shashnak Pareek, Mr. Sarad Kumar Singhania, Advocates, for the Petitioner.
Mr. Abhinav Mukerji, Advocate, for the Respondents.
Head Note:
PRACTICE AND PROCEDURE
Civil Procedure Code, 1908
Section 100 Order 18 – Second appeal – Adjournments – Justification – Second appeal filed on 27.07.2001 – Several adjournments granted – Ultimately, dismissed in default on 10.11.2003 – Restoration application in 2004 – Allowed on 09.01.2006 – Ministerial order of restoration recorded on 11.05.2010 – Again several adjournments – Substantial question of law framed on 09.05.2011 – Comments upon such state of affair and Held that getting adjournments is neither an art nor a science. Procrastination on part of any one destroys the values of life. Such attitude (of getting adjournments) cannot be appreciated or tolerated. In this case the Court should not have shown indulgence of such a magnitude. Further, time has come to abandon idleness so that syndrome of delay does not erode the concept of expeditious justice. Kailash’s, Sushil Kumar Sen’s, Shamlal Murari’s, Shiv Cotex’s, Ramon Services Pvt. Ltd.’s, Mahabir Prasad Singh’s, O.P. Sharma’s, R.K. Garg, Advocate’s, Diwan Naubat Rai’s, Surinder Singh’s etc. cases referred and relied upon.
Civil Procedure Code, 1908
Section 100 Order 18 – Second appeal – Adjournments – Justification – Second appeal filed on 27.07.2001 – Several adjournments granted – Ultimately, dismissed in default on 10.11.2003 – Restoration application in 2004 – Allowed on 09.01.2006 – Ministerial order of restoration recorded on 11.05.2010 – Again several adjournments – Substantial question of law framed on 09.05.2011 – Comments upon such state of affair and Held that getting adjournments is neither an art nor a science. Procrastination on part of any one destroys the values of life. Such attitude (of getting adjournments) cannot be appreciated or tolerated. In this case the Court should not have shown indulgence of such a magnitude. Further, time has come to abandon idleness so that syndrome of delay does not erode the concept of expeditious justice. Kailash’s, Sushil Kumar Sen’s, Shamlal Murari’s, Shiv Cotex’s, Ramon Services Pvt. Ltd.’s, Mahabir Prasad Singh’s, O.P. Sharma’s, R.K. Garg, Advocate’s, Diwan Naubat Rai’s, Surinder Singh’s etc. cases referred and relied upon.
Ed.: In this case, the Supreme Court has declined to interfere in the Orders passed by High Court.
Held:
The proceedings in the second appeal before the High Court, epitomizes the corrosive effect that adjournments can have on a litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralyzed by adjournments and non-demonstration of due diligence to deal with the matter. (Para 11)
This Court, in different contexts, had dealt with the malady of adjournment and expressed its agony and anguish. Whatever may be the nature of litigation, speedy and appropriate delineation is fundamental to judicial duty. (Para 23)
The anguish expressed in the past and the role ascribed to the Judges, lawyers and the litigants is a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact is like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. Delay either by the functionaries of the court or the members of the Bar significantly exhibits indolence. (Para 27)
Delay gradually declines the citizenry faith in the system. It is the faith and faith alone that keeps the system alive. It provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casuality. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. (Para 29)
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 also astonishing that the lawyers sought adjournments in a routine manner and the court also acceded to such prayers. When the matter stood dismissed, though an application for restoration was filed, yet it was listed after a long lapse of time. Adding to the misery, the concerned official took his own time to put the file in order. It is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments. Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. (Para 32)
There has to be strong resolve in the mind to carry out the responsibility with devotion. A time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command. Sagacious acceptance of the deviation and necessitous steps taken for the redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. (Para 32)
Cases Reffered:
1. Shiv Cotex v. Tirgun Auto Plast Private Limited and others [JT 2011 (9) SC 553] (referred & relied upon) (Para 15)
2. O.P. Sharma and others v. High Court of Punjab and Haryana [JT 2011 (6) SC 275] (referred & relied upon) (Para 21)
3. Surinder Singh v. State of Punjab [JT 2005 (8) SC 157] (referred & relied upon) (Para 26)
4. Kailash v. Nanhku and others [JT 2005 (4) SC 204] (referred & relied upon) (Para 13)
5. Zahira Habibulla H. Sheikh and another v. State of Gujarat and others [JT 2004 (Suppl.1) SC 794] (Para 31)
6. Topline Shoes Ltd. v. Corpn. Bank [JT 2002 (5) SC 111] (Para 14)
7. Ramdeo Chauhan Alias Raj Nath v. State of Assam [JT 2001 (Suppl.1) SC 300] (Para 30)
8. Ramon Services Pvt. Ltd. v. Subhash Kapoor and others [JT 2000 (Suppl.2) SC 546] (referred & relied upon) (Para 16)
9. Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. [JT 1998 (7) SC 579] (referred & relied upon) (Para 16)
10. Diwan Naubat Rai and others v. State through Delhi Administration [AIR 1989 SC 542] (referred & relied upon) (Para 25)
11. Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay and others [1984 (2) SCC 556] (Para 18)
12. Lt. Col. S.J. Chaudhary v. State (Delhi Administration) [AIR 1984 SC 618] (Para 19)
13. R.K. Garg, Advocate v. State of Himachal Pradesh [1981 (3) SCC 166] (referred & relied upon) (Para 22)
14. Hussainara Khatoon (IV) and others v. Home Secretary, State of Bihar, Patna [1980 (1) SCC 98] (Para 24)
15. Hussainara Khatoon v. Home Secretary, State of Bihar [AIR 1979 SC 1360] (Para 24)
16. State of Punjab v. Shamlal Murari [1976 (1) SCC 719] (referred & relied upon) (Para 13.1.)
17. Sushil Kumar Sen v. State of Bihar [1975 (1) SCC 774] (referred & relied upon) (Para 13)
2. O.P. Sharma and others v. High Court of Punjab and Haryana [JT 2011 (6) SC 275] (referred & relied upon) (Para 21)
3. Surinder Singh v. State of Punjab [JT 2005 (8) SC 157] (referred & relied upon) (Para 26)
4. Kailash v. Nanhku and others [JT 2005 (4) SC 204] (referred & relied upon) (Para 13)
5. Zahira Habibulla H. Sheikh and another v. State of Gujarat and others [JT 2004 (Suppl.1) SC 794] (Para 31)
6. Topline Shoes Ltd. v. Corpn. Bank [JT 2002 (5) SC 111] (Para 14)
7. Ramdeo Chauhan Alias Raj Nath v. State of Assam [JT 2001 (Suppl.1) SC 300] (Para 30)
8. Ramon Services Pvt. Ltd. v. Subhash Kapoor and others [JT 2000 (Suppl.2) SC 546] (referred & relied upon) (Para 16)
9. Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. [JT 1998 (7) SC 579] (referred & relied upon) (Para 16)
10. Diwan Naubat Rai and others v. State through Delhi Administration [AIR 1989 SC 542] (referred & relied upon) (Para 25)
11. Pandurang Dattatraya Khandekar v. Bar Council of Maharashtra, Bombay and others [1984 (2) SCC 556] (Para 18)
12. Lt. Col. S.J. Chaudhary v. State (Delhi Administration) [AIR 1984 SC 618] (Para 19)
13. R.K. Garg, Advocate v. State of Himachal Pradesh [1981 (3) SCC 166] (referred & relied upon) (Para 22)
14. Hussainara Khatoon (IV) and others v. Home Secretary, State of Bihar, Patna [1980 (1) SCC 98] (Para 24)
15. Hussainara Khatoon v. Home Secretary, State of Bihar [AIR 1979 SC 1360] (Para 24)
16. State of Punjab v. Shamlal Murari [1976 (1) SCC 719] (referred & relied upon) (Para 13.1.)
17. Sushil Kumar Sen v. State of Bihar [1975 (1) SCC 774] (referred & relied upon) (Para 13)
JUDGEMENT:
Dipak Misra, J.
1. In a democratic body polity which is governed by a written Constitution and where Rule of Law is paramount, judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of rule of law neither recognizes a master and a slave nor does it conceive of a ruler and a subject but, in quintessentiality, encapsules and sings in glory of the values of liberty, equality and justice In accordance with law requiring the present generation to have the responsibility to sustain them with all fairness for the posterity ostracising all affectations. To maintain the sacredness of democracy, sacrifice in continuum by every member of the collective is a categorical imperative. The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. The foundation of justice, apart from other things, rests on the speedy delineation of the lis pending in courts. It would not be an exaggeration to state that it is the primary morality of justice and ethical fulcrum of the judiciary. Its profundity lies in not allowing anything to cripple the same or to do any act which would freeze it or make it suffer from impotency. Delayed delineation of a controversy in a court of law creates a dent in the normative dispensation of justice and in the ultimate eventuate, the Bench and the Bar gradually lose their reverence, for the sense of divinity and nobility really flows from institutional serviceability. Therefore, historically, emphasis has been laid on individual institutionalism and collective institutionalism of an adjudicator while administering justice. It can be stated without any fear of contradiction that the collective collegiality can never be regarded as an alien concept to speedy dispensation of justice. That is the hallmark of duty, and that is the real measure.
2. Presently to the factual matrix. The respondent initiated civil action by instituting Civil Suit No. 42 of 1990 for injunction to restrain the defendant therein from selling or otherwise transferring the suit land towards the southern side of the house and further to permanently injunct him to make any construction on the land in dispute. After the written statement was filed, a counter claim was put forth by the defendant. Thereafter, issues were framed and the parties adduced evidence to substantiate their respective stands. On 12.9.1997, the learned Civil Judge (Junior Division) Nohar, District Hanumangarh, Rajasthan dismissed the suit and decreed the counter claim filed by defendant-petitioner herein. Being grieved by the aforesaid judgment and decree, the first respondent preferred Civil First Appeal No. 59 of 1997 in the Court of the concerned Additional District Judge, Nohar who, on 10.07.2001 dismissed the appeal. The dismissal of appeal compelled the respondent to file a Civil Second Appeal No. 207/2001 in the High Court of Judicature of Rajasthan at Jodhpur.
3. Be it noted, we have not adverted to the factual controversy and findings returned thereon because advertence to the same is not necessary for our purpose.
4. The chequered history of the second appeal, a tragic one, commenced on 27.7.2001, when memorandum of the appeal was presented. The appeal was listed for admission along with the stay application on 30.07.2001. The petitioner herein had entered caveat and was present on the date of admission and on the basis of the prayer made by both the parties, the court called for the lower courts records. Subsequently, the matter was listed on 8.11.2001, 5.12.2001 and 18.1.2002 but due to non-appearance of counsel for the parties, no order was passed. On 18.2.2002, though none was present on behalf of the appellant therein, yet the court adjourned the appeal. Similarly, adjournments were granted in the absence of counsel on 20.01.2003 and 4.2.2003. It is interesting to note that when the appeal was listed on 4.2.2003, the court directed issuance of notice to the appellant for making appropriate arrangements for his representation. It is apposite to note that the counsel for the respondent therein was present on that day. Thereafter, the matter was adjourned on many an occasion awaiting for service of notice on the appellant. After completion of service of notice, the matter was listed on 23.9.2003 and, as usual, none was present for the appellant. Similar was the situation on 7.10.2003. On 10.11.2003, when none was present for the appellant, the appeal was dismissed for non-prosecution in the presence of the counsel for the respondent.
5. After the appeal was dismissed for want of non-prosecution, the appellant before the High Court woke up from slumber and filed an application for restoration in 2004 which was eventually allowed vide order dated 9.1.2006. As the order sheet would reflect, time got comatosed for more than six years and eventually, ministerial order of restoration was recorded on 11.5.2010. After the formality of restoration was over breaking the artificial arrest of time, when the file moved like a large python, the appeal was listed before the court for admission on 25.10.2010 on which day the learned counsel for the appellant commenced the argument and ultimately sought adjournment. The matter stood adjourned to 10.11.2010. Thereafter, an application under Section 100 (5) read with Order 41, Rule 2 Code of Civil Procedure was filed by the appellant and opportunity was granted to the counsel for the respondent, the plaintiff therein, to file reply to the same and the matter was directed to be listed after two weeks. As the order sheet would further uncurtain the appeal was listed again on 29.11.2010 and in the meantime, the respondent had filed an application under Order 41 Rule 27 read with Section 151 of CPC.
6. On 24.2.2011, when the matter was listed for admission, the Court directed that the matter shall be listed for admission and all the applications would be considered on that date. On 7.3.2011, it was directed by the court to list the matter after one week as adjournment was sought for. Similar prayer for adjournment was made on 16.3.2011 and the matter was again directed to be listed after two weeks as prayed for. On 27.04.2011, the learned Single Judge passed the following order:
None for the appellant.
I have perused the record. This second appeal was filed as back as in the year 2001 and it is now more than 10 years that it is not yet either admitted for final hearing with a view to find out whether it involves any substantial question of law within the meaning of Section 100. It has undoubtedly caused serious concern to my conscience that this appeal has taken ten years to decide whether it involves any substantial question of law.
The matter is being adjourned almost on every occasions in the last ten years to accommodate the counsel regardless of the sufficient cause and only on mere request.
Even today the counsel is engaged for the appellant has not appeared. Another counsel got up and said that the counsel engaged is not well and, therefore, the case be adjourned.
I could have dismissed the appeal for want of prosecution but I prefer not to do so because it does not serve anybodys purpose. With extreme reluctance and against my conscience and with a view to do substantial justice to the appellant to give right of audience, I am constrained to adjourn the case to accommodate the counsel (though I am not supposed to) and list the appeal for admission in the next week.
7. At last, on 9.5.2011, the learned counsel for both the sides appeared and the matter was admitted on two substantial questions of law and there was direction for stay of operation of the impugned judgment and decree passed by the courts below.
8. Mr. H.D. Thanvi, learned counsel for the petitioner, has contended that there was no substantial question of law involved and the High Court had no reason to entertain the second appeal only on the factual score.
9. When the matter was listed on 21.9.2012 before us, the following order was passed:
Learned counsel for the petitioner submitted that Second Appeal preferred by Respondent No. 1 in 2001 was dismissed for non-prosecution on 10.11.2003, but later restored to file in January, 2006 and after almost 10 years of filing of the second appeal, the judgment and decree of both the courts below have been stayed by the High Court by its impugned order dated 9.5.2011.
Registrar General of the Rajasthan High Court is directed to file the details of the progress of S. B. Civil Second Appeal No. 207 of 2001, from 2001 to 2011, within two weeks.
10. In pursuance of the aforesaid order, the Registrar General has sent a report to this Court on the basis of which we have referred to the proceedings before the High Court. At this juncture, we may clearly state that we had not issued notice to the contesting respondent as we are not inclined to interfere with the order. But, a pregnant one, the manner in which the proceedings in the second appeal continued, being disturbing, compels us to say something on the said score. Not that this Court is saying it for the first time but a reminder serves as a propeller for keen introspection and paves the path of needed rectification.
11. The proceedings in the second appeal before the High Court, if we allow ourselves to say so, epitomizes the corrosive effect that adjournments can have on a litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralyzed by adjournments and non-demonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore the total push and pressure of the cosmos. It is devastating to expect infinite patience. Change of attitude is the warrant and command of the day. We may recall with profit what Justice Cardozo had said:
It is true, I think, today in every department of law that the social value of a rule has become a test of growing power and importance.
12. It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the obligation of the present generation to march with the time and remind oneself every moment that rule of law is the centripodal concern and delay in delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour and this is the moment, when all soldiers of law fight from the path. One has to remind oneself of the great saying, Awake, Arise, O Partha.
13. As advised, at present, we are disposed to refer to certain pronouncements of this Court. A three-Judge Bench in Kailash v. Nanhku and others [JT 2005 (4) SC 204 : 2005 (4) SCC 480], while dealing with the issue whether Order 8 Rule 1 of Code of Civil Procedure is mandatory or directory, referred to the observations in Sushil Kumar Sen v. State of Bihar [1975 (1) SCC 774] which we may profitably reproduce:
The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence processual, as much as substantive.
13.1. The Bench further referred to the pronouncement in State of Punjab v. Shamlal Murari [1976 (1) SCC 719] to emphasise the approach relating to the process of adjective law. It has been stated in the said case:
Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
14. We may note with profit that the Court had further opined that the procedure is directory but emphasis was laid on the concept of desirability and for the aforesaid purpose, reference was made to Topline Shoes Ltd. v. Corpn. Bank [JT 2002 (5) SC 111 : 2002 (6) SCC 33]. Analysing the purpose behind it, the three-Judge-Bench, referring to Topline Shoes Ltd. (supra), observed thus:
36. The Court further held that the provision is more by way of procedure to achieve the object of speedy disposal of such disputes. 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.
15. In Shiv Cotex v. Tirgun Auto Plast Private Limited and others [JT 2011 (9) SC 553 : 2011 (9) SCC 678] 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:
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 who has decided not to take the case forward?
15.1. Thereafter, the Court proceeded to answer thus:
15. It is sad, but true, that the litigants seek – and the courts grant – adjournments at the drop of the hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realise that adjournments do dent the efficacy of the judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit.
16. No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system.
15.2. After so stating, the Bench observed as follows:
A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit whether the plaintiff or the defendant must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they dont, they do so at their own peril.
16. In Ramon Services Pvt. Ltd. v. Subhash Kapoor and others [JT 2000 (Suppl.2) SC 546 : AIR 2001 SC 207], after referring to a passage from Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. [JT 1998 (7) SC 579 : AIR 1999 SC 287], the Court cautioned thus:
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 advocates 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 realize 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.
17. 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, Bombay and others [1984 (2) SCC 556], wherein the Court observed that 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 advocates for succour in times of need.
19. In Lt. Col. S.J. Chaudhary v. State (Delhi Administration) [AIR 1984 SC 618], a three-Judge Bench, while dealing with the role of an advocate in a criminal trial, has observed as follows:
We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his Advocate is finding it difficult to attend the court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day-to-day. We cannot over-stress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend.
20. In Mahabir Prasad Singh (supra), the Bench, laying emphasis on the obligation of a lawyer in his duty towards the Court and the duty of the Court to the Bar, has ruled as under:
A lawyer is under obligation to do nothing that shall detract from the dignity of the Court of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the judge, and scrupulously observe the decorum of the Court room. (Warevelles Legal Ethics at p.182)
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 function. 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.
21. While recapitulating the duties of a lawyer towards the Court and the society, being a member of the legal profession, this Court in O.P. Sharma and others v. High Court of Punjab and Haryana [JT 2011 (6) SC 275 : 2011 (6) SCC 86] has observed that the role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nations administration was to be governed by the Rule of Law. The Bench emphasized on the role of eminent lawyers in the framing of the Constitution. 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, Advocate v. State of Himachal Pradesh [1981 (3) SCC 166], Chandrachud, C.J., speaking for the Court pertaining to the relationship between the Bench and the Bar, opined thus:
….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 court room. 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 purpose that this Court, in different contexts, had dealt with the malady of adjournment and expressed its agony and anguish. Whatever may be the nature of litigation, speedy and appropriate delineation is fundamental to judicial duty. Commenting on the delay in the justice delivery system, although in respect of criminal trial, Krishna Iyer, J. had stated thus:
Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to fair trial, whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.
24. In criminal jurisprudence, speedy trial has become an indivisible component of Article 21 of the Constitution and it has been held by this Court that it is the constitutional obligation on the part of the State to provide the infrastructure for speedy trial (see Hussainara Khatoon v. Home Secretary, State of Bihar [AIR 1979 SC 1360], Hussainara Khatoon (IV) and others v. Home Secretary, State of Bihar, Patna [1980 (1) SCC 98]).
25. In Diwan Naubat Rai and others v. State through Delhi Administration [AIR 1989 SC 542], it has been opined that right to speedy trial encompasses all stages of trial, namely, investigation, enquiry, trial, appeal and revision.
26. In Surinder Singh v. State of Punjab [JT 2005 (8) SC 157 : 2005 (7) SCC 387], it has been reiterated that speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution of India. Thus, it has been put at the zenith and that makes the responsibility of everyone Everestine which has to be performed with Olympian calmness.
27. The anguish expressed in the past and the role ascribed to the Judges, lawyers and the litigants is a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact is like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. 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 [My life in Court (Garden City, New York: Doubleday & Company, Inc., 1961) p.213] had put thus:
I consider it a lawyers 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 clients inner resources to withstand the pressure.
28. A few lines from illustrious Frankfurter is fruitful to recapitulate:
I think a person who throughout his life is nothing but a practicing 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.
29. 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 provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casuality. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system cannot be allowed to remotely conceive of a casual approach.
30. In this context, it is apt to refer to a passage from Ramdeo Chauhan Alias Raj Nath v. State of Assam [JT 2001 (Suppl.1) SC 300 : (2001 (5) SCC 714]:
22. … The judicial system cannot be allowed to be taken to ransom by having resort to imaginative and concocted grounds by taking advantage of loose sentences appearing in the evidence of some of the witnesses, particularly at the stage of special leave petition. The law insists on finality of judgments and is more concerned with the strengthening of the judicial system. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakens the faith of the common man in the justice dispensation system has to be discouraged.
31. In Zahira Habibulla H. Sheikh and another v. State of Gujarat and others [JT 2004 (Suppl.1) SC 794 : 2004 (4) SCC 158], emphasizing on the duty of Court to maintain public confidence in the administration of justice, this Court has poignantly held as follows:
35. …Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it.
31.1. 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 elan 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 routine manner and the court also acceded to such prayers. When the matter stood dismissed, though an application for restoration was filed, yet it was listed after a long lapse of time. Adding to the misery, the concerned official took his own time to put the file in order. From the Registrar Generals communication it is perceptible that some disciplinary action has been initiated against the erring official. That is another matter and we do not intend to say anything in that regard. But the fact that cannot be brushed aside is that there is enormous delay in dealing with the case. Had timely effort been made and due concern bestowed, it could have been avoided. There may be cases where delay may be unavoidable. We do not intend to give illustrations, for facts in the said cases shall speak for themselves. In the case at hand, as we perceive, the learned counsel sought adjournment after adjournment in a nonchalant manner and the same were granted in a routine fashion. It is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments. Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. There has to be strong resolve in the mind to carry out the responsibility with devotion. A time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command. Sagacious acceptance of the deviation and necessitous steps taken for the redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. They have to be metamorphosed 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.
33. Though we have dwelled upon the issue, yet we restrain 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.
34. The Special Leave Petition is, accordingly, disposed of.
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1. In a democratic body polity which is governed by a written Constitution and where Rule of Law is paramount, judiciary is regarded as sentinel on the qui vive not only to protect the Fundamental Rights of the citizens but also to see that the democratic values as enshrined in the Constitution are respected and the faith and hope of the people in the constitutional system are not atrophied. Sacrosanctity of rule of law neither recognizes a master and a slave nor does it conceive of a ruler and a subject but, in quintessentiality, encapsules and sings in glory of the values of liberty, equality and justice In accordance with law requiring the present generation to have the responsibility to sustain them with all fairness for the posterity ostracising all affectations. To maintain the sacredness of democracy, sacrifice in continuum by every member of the collective is a categorical imperative. The fundamental conception of democracy can only be preserved as a colossal and priceless treasure where virtue and values of justice rule supreme and intellectual anaemia is kept at bay by constant patience, consistent perseverance, and argus-eyed vigilance. The foundation of justice, apart from other things, rests on the speedy delineation of the lis pending in courts. It would not be an exaggeration to state that it is the primary morality of justice and ethical fulcrum of the judiciary. Its profundity lies in not allowing anything to cripple the same or to do any act which would freeze it or make it suffer from impotency. Delayed delineation of a controversy in a court of law creates a dent in the normative dispensation of justice and in the ultimate eventuate, the Bench and the Bar gradually lose their reverence, for the sense of divinity and nobility really flows from institutional serviceability. Therefore, historically, emphasis has been laid on individual institutionalism and collective institutionalism of an adjudicator while administering justice. It can be stated without any fear of contradiction that the collective collegiality can never be regarded as an alien concept to speedy dispensation of justice. That is the hallmark of duty, and that is the real measure.
2. Presently to the factual matrix. The respondent initiated civil action by instituting Civil Suit No. 42 of 1990 for injunction to restrain the defendant therein from selling or otherwise transferring the suit land towards the southern side of the house and further to permanently injunct him to make any construction on the land in dispute. After the written statement was filed, a counter claim was put forth by the defendant. Thereafter, issues were framed and the parties adduced evidence to substantiate their respective stands. On 12.9.1997, the learned Civil Judge (Junior Division) Nohar, District Hanumangarh, Rajasthan dismissed the suit and decreed the counter claim filed by defendant-petitioner herein. Being grieved by the aforesaid judgment and decree, the first respondent preferred Civil First Appeal No. 59 of 1997 in the Court of the concerned Additional District Judge, Nohar who, on 10.07.2001 dismissed the appeal. The dismissal of appeal compelled the respondent to file a Civil Second Appeal No. 207/2001 in the High Court of Judicature of Rajasthan at Jodhpur.
3. Be it noted, we have not adverted to the factual controversy and findings returned thereon because advertence to the same is not necessary for our purpose.
4. The chequered history of the second appeal, a tragic one, commenced on 27.7.2001, when memorandum of the appeal was presented. The appeal was listed for admission along with the stay application on 30.07.2001. The petitioner herein had entered caveat and was present on the date of admission and on the basis of the prayer made by both the parties, the court called for the lower courts records. Subsequently, the matter was listed on 8.11.2001, 5.12.2001 and 18.1.2002 but due to non-appearance of counsel for the parties, no order was passed. On 18.2.2002, though none was present on behalf of the appellant therein, yet the court adjourned the appeal. Similarly, adjournments were granted in the absence of counsel on 20.01.2003 and 4.2.2003. It is interesting to note that when the appeal was listed on 4.2.2003, the court directed issuance of notice to the appellant for making appropriate arrangements for his representation. It is apposite to note that the counsel for the respondent therein was present on that day. Thereafter, the matter was adjourned on many an occasion awaiting for service of notice on the appellant. After completion of service of notice, the matter was listed on 23.9.2003 and, as usual, none was present for the appellant. Similar was the situation on 7.10.2003. On 10.11.2003, when none was present for the appellant, the appeal was dismissed for non-prosecution in the presence of the counsel for the respondent.
5. After the appeal was dismissed for want of non-prosecution, the appellant before the High Court woke up from slumber and filed an application for restoration in 2004 which was eventually allowed vide order dated 9.1.2006. As the order sheet would reflect, time got comatosed for more than six years and eventually, ministerial order of restoration was recorded on 11.5.2010. After the formality of restoration was over breaking the artificial arrest of time, when the file moved like a large python, the appeal was listed before the court for admission on 25.10.2010 on which day the learned counsel for the appellant commenced the argument and ultimately sought adjournment. The matter stood adjourned to 10.11.2010. Thereafter, an application under Section 100 (5) read with Order 41, Rule 2 Code of Civil Procedure was filed by the appellant and opportunity was granted to the counsel for the respondent, the plaintiff therein, to file reply to the same and the matter was directed to be listed after two weeks. As the order sheet would further uncurtain the appeal was listed again on 29.11.2010 and in the meantime, the respondent had filed an application under Order 41 Rule 27 read with Section 151 of CPC.
6. On 24.2.2011, when the matter was listed for admission, the Court directed that the matter shall be listed for admission and all the applications would be considered on that date. On 7.3.2011, it was directed by the court to list the matter after one week as adjournment was sought for. Similar prayer for adjournment was made on 16.3.2011 and the matter was again directed to be listed after two weeks as prayed for. On 27.04.2011, the learned Single Judge passed the following order:
None for the appellant.
I have perused the record. This second appeal was filed as back as in the year 2001 and it is now more than 10 years that it is not yet either admitted for final hearing with a view to find out whether it involves any substantial question of law within the meaning of Section 100. It has undoubtedly caused serious concern to my conscience that this appeal has taken ten years to decide whether it involves any substantial question of law.
The matter is being adjourned almost on every occasions in the last ten years to accommodate the counsel regardless of the sufficient cause and only on mere request.
Even today the counsel is engaged for the appellant has not appeared. Another counsel got up and said that the counsel engaged is not well and, therefore, the case be adjourned.
I could have dismissed the appeal for want of prosecution but I prefer not to do so because it does not serve anybodys purpose. With extreme reluctance and against my conscience and with a view to do substantial justice to the appellant to give right of audience, I am constrained to adjourn the case to accommodate the counsel (though I am not supposed to) and list the appeal for admission in the next week.
7. At last, on 9.5.2011, the learned counsel for both the sides appeared and the matter was admitted on two substantial questions of law and there was direction for stay of operation of the impugned judgment and decree passed by the courts below.
8. Mr. H.D. Thanvi, learned counsel for the petitioner, has contended that there was no substantial question of law involved and the High Court had no reason to entertain the second appeal only on the factual score.
9. When the matter was listed on 21.9.2012 before us, the following order was passed:
Learned counsel for the petitioner submitted that Second Appeal preferred by Respondent No. 1 in 2001 was dismissed for non-prosecution on 10.11.2003, but later restored to file in January, 2006 and after almost 10 years of filing of the second appeal, the judgment and decree of both the courts below have been stayed by the High Court by its impugned order dated 9.5.2011.
Registrar General of the Rajasthan High Court is directed to file the details of the progress of S. B. Civil Second Appeal No. 207 of 2001, from 2001 to 2011, within two weeks.
10. In pursuance of the aforesaid order, the Registrar General has sent a report to this Court on the basis of which we have referred to the proceedings before the High Court. At this juncture, we may clearly state that we had not issued notice to the contesting respondent as we are not inclined to interfere with the order. But, a pregnant one, the manner in which the proceedings in the second appeal continued, being disturbing, compels us to say something on the said score. Not that this Court is saying it for the first time but a reminder serves as a propeller for keen introspection and paves the path of needed rectification.
11. The proceedings in the second appeal before the High Court, if we allow ourselves to say so, epitomizes the corrosive effect that adjournments can have on a litigation and how a lis can get entangled in the tentacles of an octopus. The philosophy of justice, the role of a lawyer and the court, the obligation of a litigant and all legislative commands, the nobility of the Bench and the Bar, the ability and efficiency of all concerned and ultimately the divinity of law are likely to make way for apathy and indifference when delay of the present nature takes place, for procrastination on the part of anyone destroys the values of life and creates a catastrophic turbulence in the sanctity of law. The virtues of adjudication cannot be allowed to be paralyzed by adjournments and non-demonstration of due diligence to deal with the matter. One cannot be oblivious to the feeling necessities of the time. No one can afford to sit in an ivory tower. Neither a Judge nor a lawyer can ignore the total push and pressure of the cosmos. It is devastating to expect infinite patience. Change of attitude is the warrant and command of the day. We may recall with profit what Justice Cardozo had said:
It is true, I think, today in every department of law that the social value of a rule has become a test of growing power and importance.
12. It has to be kept in mind that the time of leisure has to be given a decent burial. The sooner it takes place, the better it is. It is the obligation of the present generation to march with the time and remind oneself every moment that rule of law is the centripodal concern and delay in delineation and disposal of cases injects an artificial virus and becomes a vitiating element. The unfortunate characteristics of endemic delays have to be avoided at any cost. One has to bear in mind that this is the day, this is the hour and this is the moment, when all soldiers of law fight from the path. One has to remind oneself of the great saying, Awake, Arise, O Partha.
13. As advised, at present, we are disposed to refer to certain pronouncements of this Court. A three-Judge Bench in Kailash v. Nanhku and others [JT 2005 (4) SC 204 : 2005 (4) SCC 480], while dealing with the issue whether Order 8 Rule 1 of Code of Civil Procedure is mandatory or directory, referred to the observations in Sushil Kumar Sen v. State of Bihar [1975 (1) SCC 774] which we may profitably reproduce:
The mortality of justice at the hands of law troubles a judge’s conscience and points an angry interrogation at the law reformer.
The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence processual, as much as substantive.
13.1. The Bench further referred to the pronouncement in State of Punjab v. Shamlal Murari [1976 (1) SCC 719] to emphasise the approach relating to the process of adjective law. It has been stated in the said case:
Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
14. We may note with profit that the Court had further opined that the procedure is directory but emphasis was laid on the concept of desirability and for the aforesaid purpose, reference was made to Topline Shoes Ltd. v. Corpn. Bank [JT 2002 (5) SC 111 : 2002 (6) SCC 33]. Analysing the purpose behind it, the three-Judge-Bench, referring to Topline Shoes Ltd. (supra), observed thus:
36. The Court further held that the provision is more by way of procedure to achieve the object of speedy disposal of such disputes. 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.
15. In Shiv Cotex v. Tirgun Auto Plast Private Limited and others [JT 2011 (9) SC 553 : 2011 (9) SCC 678] 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:
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 who has decided not to take the case forward?
15.1. Thereafter, the Court proceeded to answer thus:
15. It is sad, but true, that the litigants seek – and the courts grant – adjournments at the drop of the hat. In the cases where the Judges are little proactive and refuse to accede to the requests of unnecessary adjournments, the litigants deploy all sorts of methods in protracting the litigation. It is not surprising that civil disputes drag on and on. The misplaced sympathy and indulgence by the appellate and revisional courts compound the malady further. The case in hand is a case of such misplaced sympathy. It is high time that courts become sensitive to delays in justice delivery system and realise that adjournments do dent the efficacy of the judicial process and if this menace is not controlled adequately, the litigant public may lose faith in the system sooner than later. The courts, particularly trial courts, must ensure that on every date of hearing, effective progress takes place in the suit.
16. No litigant has a right to abuse the procedure provided in CPC. Adjournments have grown like cancer corroding the entire body of justice delivery system.
15.2. After so stating, the Bench observed as follows:
A party to the suit is not at liberty to proceed with the trial at its leisure and pleasure and has no right to determine when the evidence would be let in by it or the matter should be heard. The parties to a suit whether the plaintiff or the defendant must cooperate with the court in ensuring the effective work on the date of hearing for which the matter has been fixed. If they dont, they do so at their own peril.
16. In Ramon Services Pvt. Ltd. v. Subhash Kapoor and others [JT 2000 (Suppl.2) SC 546 : AIR 2001 SC 207], after referring to a passage from Mahabir Prasad Singh v. Jacks Aviation Pvt. Ltd. [JT 1998 (7) SC 579 : AIR 1999 SC 287], the Court cautioned thus:
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 advocates 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 realize 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.
17. 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, Bombay and others [1984 (2) SCC 556], wherein the Court observed that 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 advocates for succour in times of need.
19. In Lt. Col. S.J. Chaudhary v. State (Delhi Administration) [AIR 1984 SC 618], a three-Judge Bench, while dealing with the role of an advocate in a criminal trial, has observed as follows:
We are unable to appreciate the difficulty said to be experienced by the petitioner. It is stated that his Advocate is finding it difficult to attend the court from day-to-day. It is the duty of every Advocate, who accepts the brief in a criminal case to attend the trial from day-to-day. We cannot over-stress the duty of the Advocate to attend to the trial from day-to-day. Having accepted the brief, he will be committing a breach of his professional duty, if he so fails to attend.
20. In Mahabir Prasad Singh (supra), the Bench, laying emphasis on the obligation of a lawyer in his duty towards the Court and the duty of the Court to the Bar, has ruled as under:
A lawyer is under obligation to do nothing that shall detract from the dignity of the Court of which he is himself a sworn officer and assistant. He should at all times pay deferential respect to the judge, and scrupulously observe the decorum of the Court room. (Warevelles Legal Ethics at p.182)
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 function. 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.
21. While recapitulating the duties of a lawyer towards the Court and the society, being a member of the legal profession, this Court in O.P. Sharma and others v. High Court of Punjab and Haryana [JT 2011 (6) SC 275 : 2011 (6) SCC 86] has observed that the role and status of lawyers at the beginning of sovereign and democratic India is accounted as extremely vital in deciding that the nations administration was to be governed by the Rule of Law. The Bench emphasized on the role of eminent lawyers in the framing of the Constitution. 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, Advocate v. State of Himachal Pradesh [1981 (3) SCC 166], Chandrachud, C.J., speaking for the Court pertaining to the relationship between the Bench and the Bar, opined thus:
….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 court room. 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 purpose that this Court, in different contexts, had dealt with the malady of adjournment and expressed its agony and anguish. Whatever may be the nature of litigation, speedy and appropriate delineation is fundamental to judicial duty. Commenting on the delay in the justice delivery system, although in respect of criminal trial, Krishna Iyer, J. had stated thus:
Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to fair trial, whatever the ultimate decision. Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.
24. In criminal jurisprudence, speedy trial has become an indivisible component of Article 21 of the Constitution and it has been held by this Court that it is the constitutional obligation on the part of the State to provide the infrastructure for speedy trial (see Hussainara Khatoon v. Home Secretary, State of Bihar [AIR 1979 SC 1360], Hussainara Khatoon (IV) and others v. Home Secretary, State of Bihar, Patna [1980 (1) SCC 98]).
25. In Diwan Naubat Rai and others v. State through Delhi Administration [AIR 1989 SC 542], it has been opined that right to speedy trial encompasses all stages of trial, namely, investigation, enquiry, trial, appeal and revision.
26. In Surinder Singh v. State of Punjab [JT 2005 (8) SC 157 : 2005 (7) SCC 387], it has been reiterated that speedy trial is implicit in the broad sweep and content of Article 21 of the Constitution of India. Thus, it has been put at the zenith and that makes the responsibility of everyone Everestine which has to be performed with Olympian calmness.
27. The anguish expressed in the past and the role ascribed to the Judges, lawyers and the litigants is a matter of perpetual concern and the same has to be reflected upon every moment. An attitude of indifference can neither be appreciated nor tolerated. Therefore, the serviceability of the institution gains significance. That is the command of the Majesty of Law and none should make any maladroit effort to create a concavity in the same. Procrastination, whether at the individual or institutional level, is a systemic disorder. Its corrosive effect and impact is like a disorderly state of the physical frame of a man suffering from an incurable and fast progressive malignancy. 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 [My life in Court (Garden City, New York: Doubleday & Company, Inc., 1961) p.213] had put thus:
I consider it a lawyers 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 clients inner resources to withstand the pressure.
28. A few lines from illustrious Frankfurter is fruitful to recapitulate:
I think a person who throughout his life is nothing but a practicing 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.
29. 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 provides oxygen constantly. Fragmentation of faith has the effect-potentiality to bring in a state of cataclysm where justice may become a casuality. A litigant expects a reasoned verdict from a temperate Judge but does not intend to and, rightly so, to guillotine much of time at the altar of reasons. Timely delivery of justice keeps the faith ingrained and establishes the sustained stability. Access to speedy justice is regarded as a human right which is deeply rooted in the foundational concept of democracy and such a right is not only the creation of law but also a natural right. This right can be fully ripened by the requisite commitment of all concerned with the system. It cannot be regarded as a facet of Utopianism because such a thought is likely to make the right a mirage losing the centrality of purpose. Therefore, whoever has a role to play in the justice dispensation system cannot be allowed to remotely conceive of a casual approach.
30. In this context, it is apt to refer to a passage from Ramdeo Chauhan Alias Raj Nath v. State of Assam [JT 2001 (Suppl.1) SC 300 : (2001 (5) SCC 714]:
22. … The judicial system cannot be allowed to be taken to ransom by having resort to imaginative and concocted grounds by taking advantage of loose sentences appearing in the evidence of some of the witnesses, particularly at the stage of special leave petition. The law insists on finality of judgments and is more concerned with the strengthening of the judicial system. The courts are enjoined upon to perform their duties with the object of strengthening the confidence of the common man in the institution entrusted with the administration of justice. Any effort which weakens the system and shakens the faith of the common man in the justice dispensation system has to be discouraged.
31. In Zahira Habibulla H. Sheikh and another v. State of Gujarat and others [JT 2004 (Suppl.1) SC 794 : 2004 (4) SCC 158], emphasizing on the duty of Court to maintain public confidence in the administration of justice, this Court has poignantly held as follows:
35. …Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it.
31.1. 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 elan 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 routine manner and the court also acceded to such prayers. When the matter stood dismissed, though an application for restoration was filed, yet it was listed after a long lapse of time. Adding to the misery, the concerned official took his own time to put the file in order. From the Registrar Generals communication it is perceptible that some disciplinary action has been initiated against the erring official. That is another matter and we do not intend to say anything in that regard. But the fact that cannot be brushed aside is that there is enormous delay in dealing with the case. Had timely effort been made and due concern bestowed, it could have been avoided. There may be cases where delay may be unavoidable. We do not intend to give illustrations, for facts in the said cases shall speak for themselves. In the case at hand, as we perceive, the learned counsel sought adjournment after adjournment in a nonchalant manner and the same were granted in a routine fashion. It is the duty of the counsel as the officer of the court to assist the court in a properly prepared manner and not to seek unnecessary adjournments. Getting an adjournment is neither an art nor science. It has never been appreciated by the courts. All who are involved in the justice dispensation system, which includes the Judges, the lawyers, the judicial officers who work in courts, the law officers of the State, the Registry and the litigants, have to show dedicated diligence so that a controversy is put to rest. Shifting the blame is not the cure. Acceptance of responsibility and dealing with it like a captain in the frontier is the necessity of the time. It is worthy to state that diligence brings satisfaction. There has to be strong resolve in the mind to carry out the responsibility with devotion. A time has come when all concerned are required to abandon idleness and arouse oneself and see to it that the syndrome of delay does not erode the concept of dispensation of expeditious justice which is the constitutional command. Sagacious acceptance of the deviation and necessitous steps taken for the redressal of the same would be a bright lamp which would gradually become a laser beam. This is the expectation of the collective, and the said expectation has to become a reality. Expectations are not to remain at the stage of hope. They have to be metamorphosed 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.
33. Though we have dwelled upon the issue, yet we restrain 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.
34. The Special Leave Petition is, accordingly, disposed of.
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