JUDGMENT
Saldanha, J.
1. An unfortunate situation has arisen pursuant to an Order passed in this R.F.A when the Court had occasion to deal with IA. 1 for condonation of delay. Those facts will be recounted slightly later because they are relevant. This Court passed an order dated 28.7.95 directing the Registrar to discontinue the practice of returning papers to the Advocates after the same had been checked and various office objections noted, as a result of which the removal of objections would have to be attended to within the Court premises without the Lawyer being permitted to physically take back the records and retain them for an indefinite period of time. The raison detre for this Decision was because experience has shown that the number of Cases in which papers are properly presented along with all necessary annexures and the Court Fees, shockingly enough are less than 4%, and that therefore, in almost all Cases barring this microscopic number, there
is abnormal and heavy delay as a result of this default. What had been happening was that once the papers were returned to the
learned Advocates that for a variety of reasons, they did not come back sometimes for months and in a large number of cases for years and in a few cases even for more than one decade. In the first instance, once a proceeding is filed in the High Court regardless of the type of number that is assigned to it, it becomes a pending proceeding and it is ultimately the overall responsibility of the Court to ensure that the matter be disposed of with the minimum of delay and the overall time frame between the date of filing up to the date of
disposal is the responsibility of the Court. For whatever reason, even if the records have been taken back and are lying with the learned Advocates, the Cases add up to the number of arrears that are pending. In a few instances the papers have never come back as the same were supposed to have been misplaced and the litigant has had to go through the trauma of bring asked to reapproach the Trial Court and obtain fresh copies of the proceedings which is a laborious and expensive exercise. The damage caused to the litigant is not only grave and far reaching but in many of the cases irreparable. As a result of this, there has been a flood of complaints from the litigants; that their cases are being abnormally delayed and that they do not come up before the Court in the first instance even for admission or orders for months and years. It is their complaint that they were wrongly informed that the Court is not taking up the matters due to pressure of work. The more serious head of complaints relates to a large number of Civil Proceedings in which there is a direct charge that substantial amounts of money under the head of Court Fees are collected, that the papers are presented with a token Court Fee and that after abnormally long periods of time the deficit amount is paid up. The last head of complaints, which is invariably from the respondents, records the position that they are rendered helpless for a long period of time because it is the opposite party namely the appellant’s litigation and that the method used for choosing a Forum is” to retain the papers until such time as the appellant desires to present them. Once the papers have been lodged with the office, the limitation aspect is saved despite which it is possible to delay the matter through such methods.
2. The complaints from litigants is one aspect, which the Courts and the learned Advocates have to take serious note of but what was equally of consequence was the fact that when the papers are taken back and the objections are removed, within the prescribed time, an application for condonation of delay in refiling results. In all these occasions affidavits are filed by the learned Advocates themselves which undoubtedly is a matter of avoidable embarassment. The tenor of these affidavits is extremely casual and the two standard stereo type reasons that are set out are that the papers were mixed up in the Lawyer’s office or that it was a default on the part of the Lawyer’s Clerk. The Law of Limitation very clearly stipulates that when the time
limit is breached, the party forfeits the right to proceed in that litigation and that even while condoning delay a Court ought not to lightly show indulgence to the defaulting party because corresponding rights have accrued to the opposite party. I have had occasion to point out and to record, that however much a Court might want to be indulgent to the defaulting party, that a Court cannot lose sight of the corresponding injustice that would result to the adversary in the litigation. If these principles were to be strictly applied, almost everyone of these applications would have to be dismissed and the inevitable result would be that the litigant would suffer irretrivably and the immediate fall out would be the action that would follow against the learned Advocate who was responsible for what happened. I have had occasion to deal in some detail with various aspects of this issue while passing orders in an application for refiling vide RFA 729/95 and for ready reference I propose to annex a copy of that Judgment to this one. In short, what has been pointed out is that approximately 10% of the Judicial time of the High Court was consumed in hearing these applications for condonation of delay in refiling in the year 1994 and over 6000 such applications had come up and that the figure in the year 1995 is even higher. When the Courts are working under time pressures, it is just not possible to permit this situation to continue and it is in this background that it became necessary for this Court to issue appropriate directions as a corrective measure. Effectively, it was considered proper that if the office objections are attended to without the papers being taken away, that the office would have some control over the time factor and would be able to monitor the matter so that the applications for condonation of delay in refiling would be completely eliminated. It would also avoid the embarassment to the learned Advocates but more importantly save them from the vulnerability of action that would follow. I have also had occasion to point out to the Bar in that order, that the Supreme Court has had to bring the Medical Profession within the ambit of the Consumer Protection Act and that the situation arose only because of a flood of serious complaints having come to the Courts in respect of acts relating to that Profession and that the Legal Profession should not invite a similar situation by allowing the state of affairs to continue.
3. For ready reference, the earlier Order dated 28.7.95 passed by this Court is reproduced below:-
“This is an application for condonation of delay in refiling. The learned Advocate has pointed out that by virtue of the papers having got mixed up with the other briefs in the Office, that some amount of delay took place in attending to the same. The Court cannot hold such a situation against either the litigant or his learned Advocate and therefore, the delay will have to be condoned.
This difficulty has been arising repeatedly and it is entirely due to one faulty procedure followed by the Office of the High Court insofar as when objections are noted, the papers are returned to the learned Advocate with instructions to remove the objections in question and refile the papers within the prescribed time. Inevitably, having regard to the pressures on a Lawyer and the other attendant difficulties which are prevalent in the system, the chances of this brief getting mixed up with other current ones cannot be ruled out and in the process if the time limit gets overstepped, invariably, the professional has to face punishment explaining his delay, filing his Affidavit etc. This situation is avoidable by merely taking proper corrective action.
The Registrar shall notify prominently, so that all the members of the Bar have adequate notice, that the system of returning filed papers to the Advocates or their Clerks for removal of objections in RFAs. and W.Ps. will be discontinued from a prescribed date i.e. 1.9.95. The cases shall be notified on the Board and the learned Advocates shall be required to remove the objections within a prescribed date. If this is not done, the normal steps as are taken in cases when the objections are not removed within the prescribed date shall not be followed. The practice of returning the papers should be discontinued hereinafter. The Office will take note of this fact immediately.
As far as the present I.A. is concerned, the same is allowed. Office to number the matter and proceed.”
Pursuant to that Order being passed, the Registrar placed the matter before the Full Court for appropriate action because the matter concerned Rule 14 of the High Court Rules. Rule 14 reads as follows:-
“14. (1) The Registrar after reading the report of the Examiner and looking into the papers examined whenever necessary shall, if all the papers are in order, direct that the appeal, petition or other matter be admitted to register and numbered. If there are any defects, the Registrar shall direct such amendments or corrections in the papers as may be necessary be carried out or direct that the papers be returned to the party presenting the same or his Advocate for rectification of the defects or for compliance with such requisitions as he may consider necessary in the circumstances of the case, fixing the time or period within which the papers should be represented after rectification of defects and compliance with the requisitions. The Registrar may, from time to time, extend the time or period allowed by him for re-presentation of papers by such period or periods as may be necessary not exceeding six weeks in the aggregate.
(2) A list of papers directed to be returned shall be put up on the Notice Board giving the particulars of the same and name of party presenting the same or his Advocate. The time fixed by the Registrar for re-presentation shall be counted from the date on which the list is so put up on the Notice Board.”
4. The Full Court after considering the matter took the Decision that the decisions contained in the Order dated 28.7.95 required to be implemented and passed a Resolution to the effect. As a result thereof, the Registrar issued a Circular dated 29.9.95 which is reproduced below :-
CIRCULAR
On consideration of Rule 14 of Chapter II of the High Court of Karnataka Rules, 1959, in the light of the observations made by the Hon’ble Mr. Justice M.F. Saldanha in Regular First Appeal No. 451/95 and the Office Note thereon, the Full Court in its meeting held on 18.9.1995 resolved to discontinue, with effect from 11.10.1995, the procedure of returning to the Party/Advocates the case papers to rectify the defects, and instead to allow the Party/Advocate to rectify the defects in the office itself within the stipulated period.”
5. The High Court Bar Association thereafter approached the Hon’ble Chief Justice and represented that as a result of Rule 14 the Lawyers are facing several difficulties and they unilaterally demanded that the Decision taken by the High Court to amend Rule 14 must be
forthwith withdrawn. The Hon’ble the Chief Justice pointed out that this was a very necessary step, that it was for good reason that the Decision had been taken and he assured the learned Advocates that all necessary action would be taken to ensure that no hardship is caused to the learned Advocates. The Bar Association thereupon took a decision that the Courts would be boycotted as their demand for the withdrawal of the action had not been conceded. This boycott took place and the working of the High Court was completely paralysed for half a day. I need to record that this action was totally and completely unjustified for a Variety of reasons, the first of them being that the change in question was pursuant to a direction issued in a Judicial Order passed by this Court and therefore, there could be no question of conveying the demand to the Hon’ble the Chief Justice that the Order be withdrawn. Secondly, it was quite obvious that the facts statistics and the circumstances under which that action became necessary had been totally and completely overlooked while this demand was made. The argument put forward was that the practice of returning papers has been in vogue since the year 1959 and that therefore it cannot be changed. The only answer to that is that there can be no estoppel against the stoppage of a wrong practice or a practice that is proved to be wrong and one needs to take note of the fact that in almost all the High Courts in the Country and in the Supreme Court as also all the other Courts in this State that it is an inflexible Rule, that proceedings once filed with the Office of the Court constitute the Court Records and that they therefore cannot be returned to a litigant or a learned Advocate except in case where there is a specific Judicial Order for the return of the papers such as where they are required to be re-presented to another Court.
6. The Bar Association thereafter took an even more unfortunate decision to boycott the Court of the Hon’ble the Chief Justice. The Supreme Court has unequivocally condemned the boycotting of Courts howsoever grave the provocation may be and to my mind, such strikes have rightly been defined as an action striking at the Court. The consequences to the litigant are grave. The time lost is irreplaceable and the fall out of such action is so very far reaching that it seriously undermines the image of these Institutions in the public mind. The Resolution, regardless of this position, the boycotting of the Court of the Hon’ble Chief Justice was carried out after which, the President of the Bar Association issued a press statement that even more stringent steps would be taken by the Bar Association such as boycotting of the entire High Court, State wide agitations, Dharnas in front of the High Court and the residence of the Hon’ble Chief Justice and the Judges etc.
7. It is at that stage, that certain, Senior Members of the Bar conveyed a request to this Court that the order dated 28.7.95 must be reconsidered. The first difficulty, though a technical one, was that the application for reconsideration which was made by two learned Advocates as also by the Bar Association was by parties who had nothing to do with this R.F.A. Since the argument was advanced that the order dated 28.7.95 was passed in this R.F.A. and since notice had been issued to the learned Advocate, in that matter and the proceedings produced, I granted liberty to the applicants to be added as formal parties or Intervenes in the R.F.A. so that they could be heard in the matter. The applications for reconsideration of the order dated 28.7.95 proceeded on two broad heads, the first of them being that the applicants have contended that the order is erroneous and without jurisdiction in so far as this Court is not vested with the power to issue such a direction since Rule 14 as it stands had not come up for consideration before the Court. That aspect of the matter will be dealt with separately. The second head that was pleaded related to the aspect of hardship to the learned Advocates and ! am reproducing verbatim, the aspect of hardship that have been pleaded as the same have been put down in writing: –
“1. In majority of cases even though the Annexures produced are legible, Office returns the same with a direction to produce legible copies. The said Annexures have to be got typed and stitched the same at appropriate place.
2. Normally, while filing the Second Appeals, the same are filed without the Certified Copy of the Trial Court’s Order since the same is fifed before the Lower Appellate Court. Papers are returned by the Office to produce the Certified Copy. On securing the same from the Trial Court, it has to be stitched.
3. Certain provisions such as, either on the question of law or on the question of court fee are not accepted by the office and they return the papers so as to refile the same, mentioning the proper provision. This requires examination with reference to relevant books.
All the three objections mentioned above can be easily rectified in the Chambers of Advocate instead at the Court Office where, there are no place even to sit. Further, attending office objections during Court hours will be difficult.
II
1. If large number of Advocates approach the return clerk at the same time, it will not only be difficult for the clerk but also result in waste of Advocate’s time because papers have to be searched and given to the Advocates.
2. There is no place or seating arrangements in the office of the Court for Advocates to sit and study the objections raised; to find out whether the objections are real and also some time has to be spent to answer certain objections; some times Case Law and provisions of law have to be pointed out.
3. Original papers will have to be looked into which may take sometime to answer office objection.
4. Objections themselves may be defective. The Advocate has to personally approach the concerned clerk to point out the same. This was being done by writing a note on the papers brought by the Advocate’ clerk or colleague.
5. The Advocate’s clerk is of no assistance if the Advocate himself has to go and rectify the defects.
6. If one paper is not signed by the advocate, he will have personally to go to office to put his signature.
7. If the junior colleague has not signed the vakalathnama, the senior Advocate who may be aged will have to go and stand in the queue.
8. If the Advocates find/think that the objections are not relevant, It will lead to arguments before the clerk. All these days papers used to
be brought by Advocates’ clerk or some other colleague and all replies were written for the perusal of the Registrar.
9. If the mistake is made by the Notary while attesting the papers he will have to be brought to the office either for his signature or putting rubber stamp.
10. If the affidavit has been sent from outside Bangalore and a defect is there it has to be sent back to that place.
11. Some times for want of time and limitation, appeals and petitions are filed without even retaining the copies of the originals and in such cases there are bound to be mistakes unless the originals are returned, the Advocate’s papers will be incomplete as he has to take copies.
12. Now-a-day’s the certified copies are not typed copies; they are Xerox copies. When such copies are produced objection is taken that they are not legible. Those papers will have to be taken back and legible copies have to be prepared.
13. Some times legible copies have to be added and stitched to the paper books and paginated. The Advocate has himself to do the work.
14. Two or three Advocates cannot use the same place for rectifying the defects.
15. It is not possible for the officer of the Court to watch what the Advocates are doing because he has to satisfy himself that ail the papers are in tact. By mistake papers may be lost or mixed up.
16. The Advocate will be in a better position to attend to the defects when he has some spare time out if he has to do the work when some other cases have come up before the Court, it will not be satisfactory job.
III
1. Advocates have to carry needle, thread, blade, gum bottle/water pad etc. to the Court Office to stitch or delete papers.
2. No proper infrastructure like table, chair and space are provided in every branch of the Court Office.
3. There is lack of space in all the branches of the Court Office and there will be heavy rush and congestion if 3 or 4 Advocates go to office together for correction of papers.
4. Junior Advocates cannot concentrate on Court work and are required to spend most of their time in attending Office work.
Eg.-
a) Whenever translation of voluminous judgment and decree of Trial Courts are required to be filed and if not filed at the first instance, the translated and typed copies have to be tallied with the original with reference to pagination. The said work will take not less than half a day.
b) Due to heavy rush, they have to visit the office number of times to rectify the defects.
c) Junior Advocates if not knowing the procedures of correction of papers and certain provisions of law, have to consult their Senior and the same will take considerable time.
5. If there is no proper co-operation from the staff of the Court Office and Advocates are asked to come time and again when there is a heavy rush and congestion in the Court Office.
6. Whenever corrections are required to be signed by the litigant residing at a different place, ho has to be summoned to the Court Office putting unnecessary financial burden on him to rectify the same, The same also involves considerable delay.
7. If by mistake Notary or Oath Commissioner or Sheristedar of far away place has left either putting his signature or marking the seal on any of the Annexures, has to be summoned to rectify the mistake to the Court Office which is highly impracticable. Even if the Notary or Oath Commissioner or Sheristedar is a Bangalorean, he cannot be compelled to come to the Court Office and rectify the mistake in every case.
8. Returning of the defective papers is in practice from the inception of framing of Rule. Members of the Bar are part and parcel of the Judiciary.
9. The present practice has no added utility because, if the papers are not refiled within the date for want of Litigant’s co-operation or Advocate’s negligence, it is they who will suffer and the Court always sees the reason while condoning the delay in refiling.
10. Where the papers filed are in the form of bounded books and if any papers are defective and required to be replaced, the same is not possible to be done on the spot.
11. In the event of certified copy of Decree or Judgment, certified copy not containing date can’t be rectified.
As far as the aspect of hardship that is sought to be pleaded in the light of the changed situation is concerned, there are only two observations that I need to make. The first of them being that I do share the view that the Department must evolve a system of working whereby hardship and inconvenience caused to the learned Members of the Bar is not only kept to the barest minimum but that it is eliminated. Before elaborating on this aspect, it is necessary to place on record that the matter was discussed in detail not only with the Registrar but with several of the other officers and staff members who are dealing with this section and they pointed out the following facts :-
a) That the number of matters where the papers are properly filed in the first instance works out to as abnormally low as about 4% which means that in almost 96% of the cases the elementary exercise of ensuring that the need to remove the office objections is not done. In this regard, it would be therefore necessary to bring it to the notice of the learned Members of the Bar that if an effort is made to conform to the requirements of the Rules to start with, that they would eliminate the necessity of visiting the office for a second time. In this regard, it has been pointed out that documents required to be annexed are not attached, copies required to be filed are either illegible or are not filed at all, paging and indexing is virtually never done. This is a level of negligence that will have to be totally avoided before the blame is put on other quarters.
b) There is a very serious complaint with regard to the non-payment of court fees. Even in cases where the Court fee is minimal, the required amount is not paid and in those of the cases where the Court fee is substantial a token Court fee is paid and thereafter the deficit is not paid for anything upto five years. The office has pointed out that the number of cases in which the requisite Court fee is tendered in the first instance is as low as 2% which means that in 98% of the cases the Court fee which ought to accompany the filing of the papers is withheld. This is a serious matter as was indicated by me earlier, charges have been made against certain learned Advocates that very big amounts totalling Rs. 1.5 crores have been collected against Court fee and retained for long periods of time. Here again, if the requisite Court fee is tendered in keeping with the Rules, there would be no question of having to deal with this objection.
c) The manner in which petitions, appeals and I.As. are drafted and presented to the office leaves much to be desired in so far as even elementary aspects such as drafting out a correct prayer clause, statements with regard to limitation, proper cause title, correct addresses of the parties are not set out and the papers are indiscriminately tendered in the office. Here again, the Bar ought to take serious note of the fact that on the aggregate it is found that the number of cases in which these factors have been attended to works out to as low as 6% thereby revealing the sad fact that due to bad draftsmanship or carelessness, corrections, amendments and modifications become necessary all of which ought to have been done prior to presentation of the papers.
d) The office has also pointed out that with regard to the minor aspects such as stitching and overall presentation of the file in the manner that the Rules require is concerned, that the level of carelessness is as high as 90% which again is totally avoidable if a little time and effort is put in towards ensuring that the file is properly presented.
8. I have taken the trouble to highlight these facts because they indicate the starting point of the trouble in so far as the default is not on the part of the office but on the part of the persons presenting the papers and it is highly desirable that the Bar Association specifically brings these factors to the notice of the learned Advocates who have been quick to react violently to corrective steps but who require to kindly ensure that they conform to the Rules in the first instance which if done, will save them the time and effort required to take corrective action later on.
9. After hearing the learned Advocates and perusing the grievances put forward which I have verbatim reproduced above, I do concede that until such time as the present lot of pending matters are attended to, that the office must ensure that there is adequate space and facility made available in the office for purposes of carrying out such things as minor amendments, doing the paging etc. Also, the office is wrong in having adopted the attitude that all correctives must be carried out within the four corners of the office room itself. The direction that papers shall not be returned has obviously been misunderstood in so far as they are not to be literally given back and it is clarified that in all those cases where the learned Advocate or his clerk desires to take the papers to the Bar Room or to the Clerk’s Room, that there shall be no objection as far as the same is concerned as long as the corrective action is taken within the premises of the High Court and the papers brought back to the office before the close of working hours on that very day. In exceptional cases where a particular document is required to go back for some purpose such as an endorsement etc., the learned Advocate shall be permitted to detach the same, take it back and refile it after its return. The office shall also ensure that all necessary co-operation is extended to the Members of the Bar and their representatives and that a smooth and trouble free working system is adopted so that there is no cause for complaint.
10. As far as the legal aspect of the matter is concerned, the submission is that Rule 14 appears in Chapter XII of the High Court Rules and that these Rules were framed after publication. My attention is drawn to Section 122 of the C.P.C. which invests the High Court with the power to make Rules regulating their own procedure. It is pointed out to me by the learned Counsel that Section 122 indicates that these Rules are to be made after previous publication. Also, the learned Counsel points out to me that there is a Rule Making Committee constituted by the High Court under Section 123 CPC, and the Committee shall consist of three Judges of the High Court, two Legal Practitioners and a Judge of a City Civil Court, subordinate to the High Court. The Code further requires that the subsequent Sections prescribe that the Rule Making Committee shall recommend to the High Court through a report any proposal to annul, alter or add to the Rules or to make new Rules which report shall be taken into
consideration. There is also a requirement that these Rules shall be published in the Official Gazette and that they come into force with effect from the date of publication. The learned Counsel submitted that pursuant to this procedure, the existing High Court Rules have come into force in the year 1959. ft is his submission that Rule 14, as earlier indicated by me, provides an option to the Registrar to direct that the objections be removed or that the papers be returned to the party presenting the same or his Advocate for rectifying of the defects or for compliance with the necessary requisition within a prescribed period of time and that the papers should be re-presented after rectification of defects and compliance with the requisition. The learned Counsel has advanced the submission that the earlier Order passed by this Court directing that the practice of returning the papers should be discontinued constitutes an amendment to Rule 14 through a Judicial Order which cannot be done. He contends that the Rule in question had not come up for consideration before the Court, that its validity was not challenged and neither has the Court struck down the Rule. The real thrust of the argument proceeds along the line that any change in the Rule would constitute an amendment which is a function within the powers of the Rule Making Committee and that for this purpose the entire procedure prescribed under the C.P.C. must be exhausted namely that the Committee must put up a report, that the High Court must thereafter promulgate the Rule or amendment which must thereafter be approved by the State Government and should be published in the Official Gazettee and that in the absence of this procedure being followed, that it is not open to the Court through a Judicial Order to amend the Rule or for that matter for the High Court itself to unilateraly amend the Rule on the basis of any directions that are contained in such a Judicial Order.
11. The aforesaid submission proceeds on the basis of a factual misconception. A clear reading of Rule 14 unequivocally indicates that it prescribes two procedures, the first of them being that the objections are required to be rectified on the spot and in those Cases where this may not be feasible, that the papers can be handed back for rectification of these defects and refiling within a prescribed time. In other words, in those of the cases where it was necessary to handback the papers this was permissible, the guiding principle embodied in the Rule being that a temporary return for a short period of time was only for removal of the objections after which the papers had to be re-tendered. A wrong practice had become prevalent in the office which was the result of an obvious misreading and misunderstanding of the Rules whereby it had become customary for the office to wrongly give back the papers in every case and even though the Rule requires their re-tender within a prescribed number of days, this latter aspect was virtually ignored except to the extent of later on requiring an application for condonation of delay if the time limit had been overstepped. It is this wrong practice that had been disapproved of by the Court and the Judicial Order dated 28.7.1995 prescribed that this practice should be stopped. The Order was required to be understood within the framework of Rule 14 and it only prohibited the unconditional return or giving back of the papers. The Registrar brought this Order to the notice of the Full Court and the Full Court by a Resolution approved of the directions issued in the order dated 28.7.95. Neither the Judicial Order nor the Resolution passed by the Full Court sought to amend or alter the Rule 14 and the only direction given was with regard to the manner in which Rule 14 had to be applied. To my mind therefore the legal challenge presented to the Order dated 28.7:1995 which proceeds on the footing that by that Order the Rule stood amended is wholly and totally misconceived.
12. Another submission that was canvassed was to the effect that under Rule 3 of Chapter IV of the High Court Rules, the power to direct the removal of objections vests in the Registrar. It is contended that the discretion conferred by Rule 14 is required to be exercised by the Registrar and that this Court has virtually usurped the powers of the Registrar in issuing the directions contained in the Order dated 28.7.95 and that consequently, those directions should be reconsidered and set aside. I do not need to labour on this submission except to point out that under the Rules, the powers in the first instance do vest in the Registrar but this is subject to the corrective action that a Court may thereafter direct and the commonest example is in those of the cases where the office raises an objection on such matters as jurisdiction, Court fee etc. which the learned Advocate contests and it is ultimately the Court through a Judicial Order which gives effect to the Rules. It is wholly and totally incorrect to submit that the power to interpret the Rules or to direct the manner in which they are required to be implemented does not vest in
the Court and therefore, to contend that the power can only be exercised by the Registrar alone is not only hyper technical but is a virtual misreading of the law.
13. A subsidiary argument that was canvassed in this regard was that Section 128(2) circumscribes the ambit and scope of the Rules which can be made by the High Court which shall not be inconsistent with the provisions of the C.P.C. and Sub-section (2) deals with the power to delegate to the Registrar the duties that I have referred to above. The contention once again is that if such powers have been delegated to the Registrar, that it is only that officer who can decide on the manner of implementation of Rule 14 and that the Court was wrong in having intervened in this regard. It is quite elementary that when powers are delegated to the Registrar, that the Registrar is exercising the powers on behalf of the authority that has delegated the powers and in other words, it means that the Registrar is acting on behalf of the Court, it is a total fallacy in these circumstances to assume that merely because certain powers are delegated, that the Court in whom the power basically vests is consequently devoid of the authority to exercise those powers. A delegation is done for purposes of convenience but that does not ever mean that the source of such power is extinguished from the authority which originally delegated the power. On the other hand, the position that obtains in law is that such delegation can afterwards be revoked and in the case of the Courts, as happens day in and day out, where it is necessary to reconsider the manner in which the delegate has exercised power, that it is the Court which is required to reconsider the matter.
14. The last argument that was advanced proceeds on the footing that Section 152 C.P.C. prescribes that a Court shall have power to amend judgments, decrees or orders only in relation to clerical or arithmetical mistakes and that this power does not confer on the Court the jurisdiction to order corrective action in cases where the Rules may have been wrongly applied or for that matter, where a wrong provision may have crept into the Rules. As far as the latter aspect is concerned, I need to record that no correction or amendment has been carried out as far as Rule 14 is concerned and therefore, Section 152 would have no application at all. As indicated by me above, what has in fact been done is that a wrong practice that had become prevalent and which had gained existence and which flows from a misunderstanding and misconception of the Rule was directed to be corrected which is wholly and completely within the jurisdiction of the Court.
15. In the aforesaid circumstances, to my mind it is unnecessary to set aside the order dated 28.7.95 though I have already indicated above that several procedural corrections would have to be ensured by the office for purposes of eliminating any hardship or inconvenience to the Members of the Bar. The well being of the Members of the Bar is not only an important but a paramount consideration which this Court will always consider and uphold in its entirety and in evolving working systems, if there is any difficulty expressed by them, the Courts and the administrative set up will most certainly come to their full assistance, it is however equally important that the level of professionalism be stepped up and strictly adhered to and that as has repeatedly been pointed out in this order, the serious defaults that are taking place with impunity must be either rectified or stopped. It is very necessary that the learned Advocates be willing to co-operate in this regard which is something that they owe to themselves and to the clients whom they represent and whose interests must be seriously considered and upheld. The office shall accordingly ensure that all these corrective steps are taken forthwith and the Registrar shall ensure that if any problems are brought to his notice in this regard, that they shall not only be taken cognizance of but that they shall be redressed without any delay.
16. Since detailed reference were made to the Rule Making Committee, it shall be also open to the Bar Association and its Members to place before the Rule Making Committee within a period of one month whatever submissions they desire to put forward concerning changes if any which may be desirable or which are necessary with regard to the existing Rules for purposes of improving the efficiency or eliminating the difficulties in the working of the system. The Rule Making Committee will thereafter consider these suggestions/representations and submit its report to the Full Court for purposes of any consequent action that may be necessary.
17. In the light of the directions contained herein the Registrar shall withdraw the Circular dated 29.9.95 and shall bring it to the
notice of Members of the Bar though a fresh Circular that minor objections may be removed in the office or within the Court premises by the Lawyers or their authorised representatives within the prescribed period of 3 weeks. If valid ground is shown through a Memo, the time period may be extended on a maximum of two occasions. Return of those documents which require rectification or replacement shall also be permitted if the need for the same, is demonstrated. As indicated earlier, the aspect of convenience shall be taken special note of and the discretion shall be left to the Registrar, in exceptional cases to make whatever other concessions are necessary.
The Bar Association shall endeavour to ensure that copies of this Order are made available to its Members.
ANNEXURE
R.F.A. 729 of 1995
Dated 23rd November 1995
ORDERS ON IA.I
1. Are the lawyers practising in this High Court virtually creating a situation for a demand that the legal profession be brought within the purview of the Consumer Protection Act? The Supreme Court has recently held that the Medical Practitioners can be proceeded against if the quality of their service is found wanting and the case arose out of a complaint alleging professional negligence. This Court has been flooded with similar complaints and it was considered essential that correctives be applied. The reaction was violent, the move was opposed and the working of the Courts was disrupted through boycotts. What has been overlooked is that nobody can claim to be a law unto himself – a professional is doubly accountable, first to the Court and then to the client. The situation gets compounded when the professional is in default and refuses to acknowledge it and worsens when a course of action is aimed at intimidating the Judiciary. This has necessitated our taking a good look at some disturbing but equally alarming facts.
2. The learned Advocates practising in the Court will have to seriously address themselves to some very grave issues concerning their conduct of the litigation as these reflect adversely on the entire system. As representatives of the litigants they have heavy responsibilities when a case is entrusted to them not to mention the basic professional obligations, and if there is any lapse or negligence in the conduct of the proceeding, they will straightaway open them selves to the charge of professional misconduct, The consequences of orders passed by the lower Courts whether they are criminal cases or civil, are invariably far reaching and in the majority of cases if there is delay in the handling of the appeal or revision proceedings, the damage is irretrievable. In numerous instances – and the number runs into over a thousand, the litigants have complained bitterly that their matters have not been listed before the Court in the first instance even though months and years have elapsed and they are under the wrong impression that the fault lies with the administration. When these complaints were cross-checked, it was found that in every one of these cases the papers wore filed with numerous defects, that they were returned to the Lawyer for rectification of these defects which was thereafter not done for months and years and in many instances, the papers were never refiled with the office. When the delay was abnormal and the Advocate found the situation embarassing, the litigant was told that the papers have been misplaced and he was put to the heavy expenditure of applying for fresh documents from the lower Court, which again took many months and the damage in most of these cases was complete because the decrees were executed.
3. What is being completely overlooked in all these instances is the fact that under the High Court Rules, the papers are required to be presented in a particular form which includes annexation of all necessary documents such as certified copies, vakalaths and the like, that the documents must be legible, that the requisite Court Fee be paid and that the presentation be in conformity with the Rules. It has unfortunately been found that these requirements are observed in less that 5% of the cases. There is absolutely no justification for this initial default and that is the starting point of the trouble because if the papers are presented in conformity with the Rules, the need to thereafter go through the process of carrying out the rectifications will not arise. If the papers are properly presented, they will be examined and placed before the Court within a matter of days and it must therefore, be realised that it is this primary default that is creating the insurmountable difficulties that follow.
4. The law prescribes that you cannot take advantage of your own wrong but it is precisely this that is being done. Whereas in all the Subordinate Courts in Karnataka, in almost ail the other High Courts in the Country and even in the Registry of the Supreme Court papers once filed cannot be taken back, the wrong practice was being followed that the entire file was returned by the office for the removal of the defects/objections. Some of the litigants complain that the reason given by their Lawyers was that they or their clerks “misplaced” the papers for months or years and that they mysteriously reappeared at a convenient time. I am unable to accept these grounds because in a few cases where the situation was checked, it was clear that this was done in order to avoid a particular Court or choose another one. That aspect assumes significance because Forum hunting is downright proscribed.
5. The gravest aspect of the matter is that there are a whole class of cases where substantial amounts of Court Fees are collected from the clients and the amounts not paid to the office for years. To quote one example, where there were Appeals filed by a Bank, each case involved a Court Fee of Rs. 35,000/- and above, which was collected from the Bank and not deposited in the Court for four years. It is impossible to accept that this happened by accident. This is a noble profession and it will have to function by accepted standards of professionalism, if wrong practices have been permitted they cannot continue at the expense of the litigant; neither can the image of the Courts be tarnished by allowing them to continue when the litigants themselves have protested and asked for remedial measures. It is ironical therefore that when the remedy was prescribed that it was resisted. In this background a speaking order was necessary in this case where the delay is of the order of 621 days and deficit Court Fees almost Rs. 20,000/-.
6. In this Appeal, which has been directed against the judgment of the lower Court dated 11.8.1993, the present application is for condonation of delay in refiling. Twenty Five Months have elapsed since the passing of the decree and at this late stage the original defendant has preferred this Appeal challenging the validity of the decision. The decree is for an amount of approximately Rs. 3,00,000/-and the dispute is of a substantial nature.
7. Mr. Rajagopal, learned Advocate who represents the appellant has prayed for condonation of delay. He has filed his affidavit in which he has set out the reasons for the delay that has occurred as far as refiling is concerned, which is of 621 days i.e. almost two years. In sum and substance, the learned Advocate has pointed out that there were certain office objections after the papers were checked and that the papers were returned to him for rectification of this. He states that his Clerk Sri Raja Rao was entrusted with these functions and that it appears that his Clerk has defaulted in his duties. The learned Advocate points out that on hearing from the appellant, he tried to contact the Clerk in question but his efforts were futile and on making personal enquiries, he came to know that the objections had not been removed. He states that at this stage corrective action was taken including the payment of the deficit Court Fee but the office has placed the matter before the Court for orders. Due to the gross delay involved, unless the delay in refiling is condoned, the Court Fee cannot be accepted nor for that matter Can the Appeal proceed. His submission is that the Court should not hold these facts against the appellant as in the result, it would deprive the appellant of his right to appeal and that therefore, the Court should even as a special case, condone the delay.
8. It is necessary in this regard, for this Court to record that under Rule 14 of the High Court Rules, as they then existed, that it was open to the office to direct that the objections be removed without the papers being formally given back to the parties who filed them as is the practice almost everywhere. In other words, the rectification will have to be done within the Court premises. In the alternative, the papers could be formally returned to the learned Advocate for necessary rectification. As a result of the latter procedure being followed, the Court has been flooded with a large number of complaints from litigants who have pointed out that for months and years together, their Cases are not being taken up on the pretext that the office is not attending to the matter but that when the enquiries were made with the office they were informed that the papers were in fact taken back and have not been filed. The litigants were under the impression that the fault ties with the office and therefore, they came forward with these complaints asking for corrective steps. When the matter was investigated into, it was disclosed that in thousands of cases, the papers that have been returned are not refiled within the prescribed time. In a few cases, papers were never refiled, but in the majority of them, they have been refiled after the lapse of months and years. As a result of this state of affairs, it became necessary for the learned Advocates to file one more set of proceedings viz., applications for condonation of delay in refiling which necessity would never have arisen if the papers were properly filed in keeping with the Rules. Also, if the papers remain with office, they would have invited action if the default continued beyond the prescribed time and there would have been no scope for complaint. On the other hand, as a result of papers being taken away instances are common where the first hearing before the Court ultimately arrives even three to five years after the matter was first presented at the office.
9. In all these applications for condonation of delay, two standard reasons are set out, the first being that the papers were misplaced in the Advocate’s office with some old briefs and the second one being that there was a default on the part of the Clerk. Ultimately, on the ground that the litigant should not be penalised for whatever default that had taken place, a request is made to the Court for condonation of delay. The record further indicates that these applications for condonation of delay were neither filed nor proceeded with expeditiously and that several months and years elapsed before oven these were disposed of. The affidavits filed in most of these cases were found to be unsatisfactory and thereafter, further and better affidavits had to be filed. Some of these applications went into almost a dozen hearings but the average number of hearings as far as these applications are concerned was five. It is also interesting to record that in the year 1994, almost six and a half thousand such applications were filed and if one were to multiply the average number of hearings evens out to 200 days. This Court therefore in an earlier proceeding took the view that in order to improve matters both for the learned Advocates and for the litigants and to avoid any recurrence of the aforesaid situation that the objections will have to be removed and dealt with, without papers being formally returned and refiled. All that is needed to be done is that, as happens in all other Courts including the other High Courts in this Country, the Clerks of the learned Advocates will be required to ascertain from the office as to what the objections are and to set right the papers. I need to point out that among the complaints received by the High Court were a whole set of complaints from litigants who point out that in many cases where the delay was abnormal that they were informed that the original papers have been misplaced and they were required to once again approach the lower Court for obtaining duplicate copies which not only consumed time but was expensive. It is for good reason, therefore that this Court took the view that the papers once filed should not be taken away from the Court, Busy practitioner has his own limitations and that some time mistakes do occur, but it would be necessary to ensure that extremely few mistakes take place. The learned Advocate is functioning on behalf of a litigant and he could open himself to serious consequences if the litigant were to take steps in which case, the plea that the Clerk was a defaulter will not help the learned Advocate.
10. In view of the plea made by the learned Advocate, I have no option except to condone the delay, which is accordingly done, i direct that token costs of Rs. 151/- be paid to the Advocates Welfare Fund and a receipt thereof be filed with the office within a period of two weeks. I.A. I is accordingly allowed and stands disposed of Office to treat the deficit Court Fee as having been duly accepted and to list the matter for admission on 28.11.1995.
11. The reaction to the corrective steps suggested by this Court . was most unfortunate. These steps became necessary as the litigant who is the real affected party and who had asked for corrective action required redressal. It was equally important to ensure that the learned Advocates do not make themselves vulnerable by putting themselves in a position whereby they would be open to serious criticism for having created the unpardonable situation, but more importantly to a position where they would be liable to the client to compensate for whatever damage may have occurred. The Bar Association took a unilateral decision to boycott the Courts for half a day which was in fact carried out. Whereas, on the one hand the litigants and Advocates are extremely hard pressed because of the inability of the Courts to take up matters within the available time, the entire work in the High Court of 24 Judges was brought to a complete standstill for 3 hours. On that day, 3 of the Senior Advocates pointed out to me in the Court Room that they genuinely desired to have their matters taken up, but that they have been threatened with physical violence by certain Junior Members of the Bar if they did so and that it was under this pressure that they had only come to request that the cases be adjourned to the shortest possible date. 1 pointed out to them that with the number of matters already listed, that it was impossible to accommodate these matters in the next few weeks and that they would have to go to the month of January, which is virtually the next year. In all the 3 cases, where their clients were present, the learned Advocates were most disappointed but having regard to the situation created by the boycott, nothing could be done. The Supreme Court has repeatedly pointed out that irrespective of how serious the grievance is, that the Lawyers should never disrupt the working of the Courts and I need to record with a degree of pain that it is extremely unfortunate that even those of the Lawyers who desired to conduct their professional activities were threatened with violence if they did so.
12. I need to also record what has happened in four of the other cases. In the first one where the Appeal was itself delayed by 8 months on the ground of non refiling, the respondent who is a Ph.D was present and stated that the matter has been listed on his application and that he should be permitted to argue the same, as he was seriously prejudiced by the ex parte order passed against him which had not been vacated for 5 months as his learned Advocate consented to the adjournment of the case at the request of the other side on every occasion. He has been wrongly kept out of residential premises as a result of an exparte order obtained by misrepresenting facts to the Court. He stated that he desired to appear in person and that the Court must hear the matter but since the other side was represented by a learned Advocate who was not present due to the boycott the matter could not be taken up. The Respondent discharged
his Advocate, argued the matter in person and succeeded on the next date of hearing.
13. In the next case, the appellant and his wife were present and he stated that there is an order of demolition which was to be carried out on that very day and that his house will be pulled down and that even this urgency has been disregarded, and he requested the Court to hear him and pass an ad-interim order. Fortunately since the Court was sitting in the afternoon, I asked him to come at 2.30 PM. In this case the litigant was doubly unlucky because his learned Advocate had remained absent on several dates before the lower Court and an exparte order had been passed. Since they were residential premises the learned Judge himself had directed that the demolition should not take place for six months. The appeal was presented in time, after which the papers were returned and for five months the same were not refiled. Virtually on the eve of the time limit the matter was listed and the learned Advocate did not appear because of the boycott. The appellant and his wife were virtually in panic and were weeping and stated that they had spent their last Rupee on the litigation and that they would be on the streets as a result of what had happened. The couple had harsh things to say about the way they had been treated by Lawyers and the type of service they got and insisted that they be allowed to appear in person. I had read the entire matter and passed an ad-interim order in their favour for one week. On the next date of hearing, their Advocate withdrew from the case without assigning any reasons. The Appellants appeared in person. The other side was heard and the case was straight away remanded. These facts have to be recorded in order to illustrate the gravity of the situation which has not been taken notice of particularly when calls for boycott of the Courts are given.
14. The third case was a part heard Writ Petition concerning the terminal benefits payable to a retired employee of the K.E.B., a man dying of terminal cancer. Due to serious complications, no amount had been released and the matter had been heard by me thrice earlier and was fixed for disposal on the day when the boycott took place. Due to the complications involved, the petitioner’s presence, was necessary. He is on the wrong side of 70 and a Class IV employee who lives in Hubli. He informed the Court, that he had travelled ticketless to Bangalore and had slept at the Railway Station as he could not afford accommodation and being a Friday that he could not stay on in Bangalore or afford to come again. The matter could not be taken up as all the three learned Advocates were absent and I instructed him to inform them that the matter would be taken up in the afternoon which had to be done, as a result of which, the Court had to work till 6 PM. The petitioner had very harsh things to say with regard to the trauma that he had undergone due to the length of the litigation and he was extremely bitter that even when the Court had gone out of its way to list the matter, that the Lawyers had stayed away from their work on that day. The case was disposed off that afternoon and the petitioner received his dues but before leaving he came to the front of the Court with tears in his eyes and told me in Kannada that the Lawyers have no pity even on a helpless dying litigant. I pacified him and asked him not to say such bitter things as the matter had ended happily. I however want the Bar to take serious note of these feelings.
15. The next matter was equally pathetic. It concerns an appeal filed by a widow now aged 81 who had lent all her money to her brother as a loan on a pronote. On his refusal to return the money she had filed a suit which was dragged on for 7 years and then came to be dismissed because her learned Advocate was absent on the 5 occasions when the Court listed the matter for evidence on the ground that the absence was due to the fact that the learned Advocate kept “falling ill” on each of these dates. An Appeal was filed and the poor lady was required to once again pay the Court Fee on the amount. The matter was lying under objections for two and half years as the same had been presented with a Court Fee of only Rs. 100/- and the deficit Court Fees amount was ultimately paid after two and half years. On enquiry from me, she stated that she had handed over the whole of the Court Fee to her learned Advocate when the appeal was to be filed three years back and that he informed her that due to pressure of work, the matter was not being taken up by the Court. Even after the matter was listed for admission and the Court issued notice to the brother who is residing in Bangalore, the process fee was not paid for 3 months after which alone, the other side appeared. The appellant is a retired Head Mistress of Schools and she requested the permission of the Court to present her case in person. She was extremely bitter about the fact that on the 9th hearing, the Court could not take up the matter because of the boycott. I re-listed the matter after a few days. The appellant’s learned Advocate was not present but the respondent’s learned Advocate was present. The Appellant was present in person and produced a handwritten note from her Lawyer stating that he would not appear in the case as she had not paid the balance of fees. According to the Appellant she had already paid the Court Fees, Rs. 1000/- for out of pocket expenses and Rs. 6000/- against professional charges. She stated that she would appear in person as she had no more money left. I heard the parties and once it was demonstrated to me that the appellant had a cast iron case, the respondent who was present in Court made a statement that he would pay up the whole amount with interest rather than have the case remanded, as a result of which, the Appeal itself was disposed of.
16. The consequences of the delay in refiling as is illustrative from these 4 cases alone are extremely harsh and this aspect of the matter has been completely overlooked. Equally necessary is the need to take serious note of the reaction of the litigant to that situation as also the reaction of the litigants to the decision to boycott the Courts. It is because these issues are extremely relevant and more importantly because they are directly related to the situation that has arisen, that they are recorded in the hope that the learned Members of the Bar will grasp the reason behind the decision that there should be no further delays under the head of refiling. The time has come for serious introspection vis-a-vis our own conduct and the working of our system. The resentment levels have reached an explosive point among the litigants which make the need for timely correctives absolutely imperative.