IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11/03/2003
CORAM
THE HONOURABLE MR.JUSTICE S.JAGADEESAN
AND
THE HONOURABLE MR.JUSTICE D.MURUGESAN
C.M.A.(NPD) No.336 of 2003
K.Saroja .. Appellant
-Vs-
Sankaraswamy .. Respondent
Memorandum of Grounds of Civil Miscellaneous Appeal filed under Order
43 Rule 1 of C.P.C., against the fair and decretal order dated 3.2.2003 made
in I.A.No.689 of 2002 in O.S.No.230 of 1998 on the file of the learned First
Additional Subordinate Judge, Nagercoil.
!For Appellant :: Mr.R.Karthikeyan
^For Rexpondent :: ---
:JUDGMENT
S.JAGADEESAN, J.
The appeal is directed against the order of the learned First
Additional Subordinate Judge, Nagercoil, dismissing the application filed by
the appellant under Order 9 Rule 9 of the Civil Procedure Code.
2. The appellant filed the suit in O.S.No.230 of 1998 for
recovery of a sum of Rs.6,35,000/- together with 12% interest per annum. The
said suit was listed on 16.9.2002 for trial. Since the appellant as well as
her counsel failed to appear was dismissed for default. The appellant filed
an application in I.A.No.689 of 2002 for restoration of the suit. The same
was dismissed by the lower Court on the ground that the reason given by the
appellant for the absence of her counsel cannot be accepted as a sufficient
cause for setting aside the order of dismissal of the suit. The reason for
the absence of her counsel being boycott of the Court by the lawyers.
3. Before us, the learned counsel for appellant contended
that the counsel for the appellant did not appear on the date of hearing due
to the lawyers’ call to boycott the Courts. On that ground, the appellant
cannot be made to suffer by the dismissal of the suit. In fact the loss
sustained by the appellant because of the dismissal of the suit cannot be
compensated by any other means except the restoration of the suit. The
counsel’s absence due to the boycott of the Court even though may not be a
sufficient cause for the restoration of the suit, still, some terms can be
imposed for the restoration of the suit so that the appellant can have the
benefit of the trial.
4. We carefully considered the above contention of the
learned counsel for appellant. It is for us to consider as to whether the
suit can be restored by accepting the reason given by the appellant for the
absence of her counsel. In paragraph 3 of the affidavit filed by the
appellant in support of the application for restoration of the suit, it is
clearly stated as follows, “Due to Advocates’ boycott my Advocate was also
unable to attend the Court on the posting date.” Hence, there is no dispute
that the suit was allowed to be dismissed for default by her counsel by
abstaining himself from appearing in the Court due to boycott by the lawyers.
The reason for the boycott is not known. The lower Court disbelieved the
version of the appellant that she was unable to be present in Court due to
viral fever. We need not much dwell on the absence of the appellant because,
if the counsel for the appellant had appeared before the lower Court on the
hearing date and sought an adjournment, definitely the Court below would have
granted the same. Hence, it is for us to consider whether there is sufficient
cause for the counsel for the appellant to abstain from attending the Court
under the guise of boycott.
5. The lower Court is situated at Nagercoil in Kanyakumari
District. Instances are not rare as to the boycott of Courts in this District
as evident from the past. Most of the lawyers’ of this District are highly
prone for the boycott of Courts and for them there need not be even any rhyme
or reason to boycott the Courts. In fact no subordinate Judicial Officer is
willing to work in this district. Among them it is understood that the
posting in this district is a punishment. When such is the conduct of the
members of the bar, we are of the view that the same has to be taken serious
note of while dealing with the matters like this. Whether the boycott of the
Court by the Advocates can be justified at all? The answer is the recent
pronouncement by the Five Judges Bench of the Supreme Court in the judgment in
” EX-CAPT. HARISH UPPAL v. UNION OF INDIA AND ANOTHER (2003 AIR SCW 43)”,
wherein it has been held that the lawyers have no right to go on strike or
give a call for boycott in the following terms:-
“In conclusion it is held that lawyers have no right to go on strike or give a
call for boycott, not even on a token strike. The protest, if any is
required, can only be by giving press statements. TV interviews carrying out
of Court premises banners and/or placards, wearing black or white or any
colour arm bands, peaceful protest marches outside and away from Court
premises, going on dharnas or relay facts etc. It is held that lawyers
holding Vakalats on behalf of their clients cannot not attend Courts in
pursuance to a call for strike or boycott. All lawyers must bodily refuse to
abide by any call for strike or boycott. No lawyer can be visited with any
adverse consequences by the Association or the Council and no threat or
coercion of any nature including that of expulsion can be held out. It is
held that no Bar Council or Bar Association can permit calling of a meeting
for purposes of considering a call for strike or boycott and requisition, if
any, for such meeting must be ignored. It is held that only in the rarest of
rare cases where the dignity, integrity and independence of the Bar and/or the
Bench are at stake, Courts may ignore (turn a blind eye) to a protest
abstention from work for not more than one day. It is being clarified that it
will be for the Court to decide whether or not the issue involves dignity or
integrity or independence of the Bar and/or the Bench. Therefore in such
cases the President of the Bar must first consult the Chief Justice or the
District Judge before Advocate decide to absent themselves from Court. The
decision of the Chief Justice or the District Judge would be final and have to
be abided by the Bar. It is held that Courts are under no obligation to
adjourn matters because lawyers are on strike. On the contrary, it is the
duty of all Courts to go on with matters on their boards even in the absence
of lawyers. In other words, Courts must not be privy to strikes or calls for
boycotts. It is held that if a lawyer, holding a Vakalat of a client,
abstains from attending Court due to a strike call, he shall be personally
liable to pay costs which shall be addition to damages which he might have to
pay his client for loss suffered by him.” (emphasis supplied)
In fact the said Five Judges Bench approved the earlier view taken in the case
of “MAHABIR PRASAD SINGH v. JACKS AVIATION PVT.LTD. (1999 (1) SCC 37)”
wherein it has been held that “it is settled law that the strike or boycott by
the Advocates is no ground for adjournment.” The same view was expressed by
the learned Judges of the Supreme Court in the case of “RAMON SERVICES
PVT.LTD. v. SUBHASH KAPOOR AND OTHERS (2001 (1) SCC 118) in the following
terms:-
“We have no doubt that the legal position adumbrated by the Additional
District Judge as well as the High Court cannot be taken exception to. When
the advocate who was engaged by a party was on strike there is no obligation
on the part of the court either to wait or to adjourn the case on that
account. Time and again this Court has said that an advocate has no right to
stall the court proceedings on the ground that advocates have decided to
strike or to boycott the courts or even boycott any particular court.”
(emphasis supplied)
6. In “INDIAN COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL
OF INDIA reported in (1995 (1) SCC 732)”, the Supreme Court observed thus:-
“It is generally believed that members of the legal profession have certain
social obligations, e.g. to render “pro bono publico” service to the poor and
the underprivileged. Since the duty of a lawyer is to assist the Court in the
administration of justice, the practice of law has a public utility flavour
and, therefore, he must strictly and scrupulously abide by the Code of Conduct
behoving the noble profession and must not indulge in any activity which may
tend to lower the image of the profession in society. That is why the
functions of the Bar Council include the laying down of standards of
professional conduct and etiquette which advocates must follow to maintain the
dignity and purity of the profession.”
7. We do not want to multiply the authorities since the
recent judgment of the Supreme Court in Harish Uppal’s case (2003 AIR SCW 43)
cited supra almost concluded the issue. When the Advocates have no right to
boycott and contrary to such obligation to the client did boycott the Court
and make the client to suffer the loss, then, undoubtedly it is for the
Advocates to compensate the loss sustained by his or her client. The sympathy
on the litigants that they should not be made to suffer because of the
mistakes of the counsel seems to be a misplaced one. In fact it gives a
strength or emboldens the Advocate to boycott the Court on the hope that the
Courts will always take care of the interest of the litigants by imposing some
fine or cost which also is being paid only by the litigants and not by the
counsel. Even though the direction is issued in some of the matters to the
litigants to recover the cost from the counsel, to our knowledge, in no case
the litigant has recovered the cost from their counsel. In many of the cases
after the suit is restored or the ex parte order being set aside, the same
counsel continue the proceedings representing the litigant. When that be the
case, there cannot be any doubt that the imposing of cost with liberty to the
party to collect the same from his counsel is only a farce. Further, it is
not open to the party to give any complaint against his/her counsel for the
loss or damage sustained by him/her with the Bar Association or Bar Council
concerned. Now-a-days the largest call emanates from the Bar Association or
from the Bar Council, especially Bar Council of India. In such circumstances,
no useful purpose also would be served by giving a complaint before those
forums. Considering all these, we are not inclined to interfere with the
order of the Court below. Accordingly, the appeal has no merits and the same
is dismissed.
Index: Yes
Internet: Yes
ss
To
The First Additional Subordinate Judge
Nagercoil