Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NOS.1411714118 OF 2021
ISHWARLAL MALI RATHOD ..PETITIONER(S)
VERSUS
GOPAL AND ORS. ..RESPONDENT(S)
ORDER
M. R. Shah, J.
1. Present is the classic example of misuse of the adjournments
granted by the court. Present SLPs have been preferred challenging
the impugned order dated 17.02.2021 passed by the High Court of
Madhya Pradesh, Bench at Indore in M.P. No.107 of 2021 and M.P.
No. 108 of 2021 by which the High Court has dismissed the said misc.
petition preferred by the petitioner – original defendant, confirming the
order passed by the learned Trial Court dated 21.12.2020 closing the
right to crossexamine the plaintiff’s witness.
2.
Respondents No.1 to 4 herein filed suit for eviction, arrears of
rents and mesne profit against one Ramchandra (now dead) and the
Signature Not Verified
present petitioner on 14.08.2013. Petitioner herein – defendant filed
Digitally signed by R
Natarajan
Date: 2021.09.23
17:15:03 IST
Reason:
the written statement and issues were framed. On 12.05.2014
plaintiffs filed an affidavit under Order XVIII Rule 4 of the CPC which
was objected by the petitioner and again the plaintiffs filed an affidavit
on 07.03.2015. From 12.05.2015 till 02.12.2019 at least ten times the
defendants sought adjournments which were granted by the court.
Lastly the adjournment was given with cost as a last opportunity.
Despite the same the petitioner – defendant did not crossexamine the
plaintiff’s witness. On 14.10.2019 time for cross examination was
given with cost of Rs.5,000/ and with the condition that in any case
they fail to cross examine, their right of cross examination would be
treated as closed. Despite the same, the petitioner – defendant did not
cross examine the plaintiff’s witness and therefore on 05.11.2019 their
right was treated as closed. The petitioner approached the High Court
by filing miscellaneous petition No.6283 of 2019 by which the right of
the petitioner – defendant to cross examine the plaintiff’s witness was
closed. Though no leniency was required to be shown the High Court
allowed the said petition by granting last opportunity to the
defendants to cross examine the witness. Despite the same the
petitioner – defendant did not even thereafter also cross examine the
plaintiff’s witness. The suit was fixed for cross examination of
plaintiff’s witness on 21.12.2020. On 21.12.2020 again the counsel
appearing on behalf of the petitioner – defendant filed an application
seeking adjournment. Considering the fact that earlier number of
adjournments were granted and the opportunity was given to the
petitioner – defendant to cross examine the plaintiff’s witness and
despite the same the defendant fail to cross examine the plaintiff’s
witness, the learned Trial Court vide order dated 21.12.2020 closed
the right of the crossexamining the plaintiff’s witness. The order
passed by the learned Trial Court has been confirmed by the High
Court by the impugned judgment and order.
3.
We have heard the learned counsel appearing on behalf of the
petitioner defendant.
4.
As observed hereinabove, present is a classic example of misuse
of adjournments granted by the court. It is to be noted that the
respondents herein – original plaintiffs filed the suit for eviction,
arrears of rent and mesne profit as far as back in the year 2013. That
thereafter despite the repeated adjournments sought and granted by
the court and even twice the adjournments were granted as a last
opportunity and even the cost was imposed, the defendant failed to
cross examine the plaintiff’s witness. Although the adequate liberty
was given to the defendant to cross examine the plaintiff’s witness,
they never availed of the same and went on delaying the proceedings
by repeated prayers of adjournment and unfortunately the Trial Court
and even subsequently the High Court continued to grant
adjournment after adjournment and as such contributed the delay in
disposal of the suit which as such was for eviction. Such approach is
wholly condemnable. Law and professional ethics do not permit such
practice. Repeated adjournments on one or the other pretext and
adopting the dilatory tactics is an insult to justice and concept of
speedy disposal of cases. Petitioner – defendant acted in a manner to
cause colossal insult to justice and to concept of speedy disposal of
civil litigation.
5.
Grant of repeated adjournments in routine manner and how it
affects ultimately the justice delivery system as such came to be
considered by this court in catena of decisions and asking/grant of
repeated adjournments have been repeatedly condemned by this
court.
5.1 In the case of Shiv Cotex v. Tirgun Auto Plast (P) Ltd. (2011) 9
SCC 678, it is observed and held in paragraphs 14 to 17 as under:
“ 14. … Is the court obliged to give adjournment after
adjournment merely because the stakes are high in the
dispute? Should the court be a silent spectator and
leave control of the case to a party to the case who has
decided not to take the case forward?
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.
… A party to the suit is not at liberty to proceed with
17.
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
don't, they do so at their own peril.”
5.2 Commenting on the delay in the justicedelivery system, although
in respect of the criminal trial, Krishna Iyer, J. in the case of Babu
Singh v. State of U.P. (1978) 1 SCC 579 has observed in paragraph 4
as under:
“ … Our justice system, even in grave cases, suffers
4.
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.”
5.3 In the case of Noor Mohammed v. Jethanand and Anr. (2013) 5
SCC 202, using very harsh words and condemning the repeated
adjournments sought by the lawyers and granted by the courts, this
court has observed in paragraph 1, 12, 13, 27 and 28 as under:
“ In a democratic body polity which is governed by a
1.
written Constitution and where the Rule of Law is
paramount, the 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 the Rule of
Law neither recognises 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
the 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.
12. The proceedings in the second appeal before the
High Court, if we allow ourselves to say so, epitomises
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
paralysed by adjournments and nondemonstration 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 the law that the social value of a rule has become a
test of growing power and importance.” [ Benjamin N.
Cardozo, The Nature of Judicial Process (Cosimo Inc.,
2009) 73]
It has to be kept in mind that the time of leisure
13.
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 the 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”.
27. The anguish expressed in the past and the role
ascribed to the Judges, the 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” [ Robert
Southwell, “Loss in Delay”, in William B. Turnbull
(Ed.), The Poetical Works of the Rev. Robert
Southwell (John Russell Smith, London 1856), p. 60.] .
Slightly more than five decades back, talking about the
responsibility of the lawyers, Nizer Louis had put thus:
“I consider it a lawyer's 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 client's inner
resources to withstand the pressure.” [ Nizer
Louis, My Life in Court (Doubleday & Co. Inc.,
New York 1961), p. 213]
A few lines from the illustrious Justice Frankfurter
is fruitful to recapitulate:
“I think a person who throughout his life is
nothing but a practising 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.” [ Felix Frankfurter,
“Proceedings in Honor of Mr. Justice
Frankfurter and Distinguished Allumni,
Occasional Pamphlet No. 3” (Harvard Law
School, Cambridge, 1960), pp. 45]
28. In a democratic setup, 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 effectpotentiality to
bring in a state of cataclysm where justice may become
a casualty. 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 justicedispensation system cannot
be allowed to remotely conceive of a casual approach.”
5.4 In the aforesaid decision, this court also considered the role of
advocate in the justice delivery system and considered the earlier
decisions in paragraphs 17 to 22 which read as under:
“ 17. In Ramon Services (P) Ltd. v. Subhash
Kapoor [(2001) 1 SCC 118 : 2001 SCC (Cri) 3 : 2001
SCC (L&S) 152 : AIR 2001 SC 207] , after referring to a
passage from Mahabir Prasad Singh v. Jacks Aviation
(P) Ltd. [(1999) 1 SCC 37 : AIR 1999 SC 287] , the Court
cautioned thus : (Ramon Services case [(2001) 1 SCC
118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152 : AIR
2001 SC 207] , SCC p. 126, para 15)
“15. … 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 nonappearance was solely on the
ground of a strike call. It is unjust and
inequitable to cause the party alone to suffer for
the selfimposed dereliction of his advocate. We
may further add that the litigant who suffers
entirely on account of his advocate's non
appearance in court, 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 realise 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.”
Be it noted, though the said passage was stated in
the context of strike by the lawyers, yet it has its accent
on nonappearance by a counsel in the court.
In this context, we may refer to the pronouncement
18.
in Pandurang Dattatraya Khandekar v. Bar Council of
Maharashtra [(1984) 2 SCC 556 : 1984 SCC (Cri) 335] ,
wherein the Court observed that : (SCC p. 563, para 9)
“ 9. … 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
advocate for succour in times of need.”
19. In Lt. Col. S.J. Chaudhary v. State (Delhi
Admn.) [(1984) 1 SCC 722 : 1984 SCC (Cri) 163 : AIR
1984 SC 618] , a threeJudge Bench, while dealing with
the role of an advocate in a criminal trial, has observed
as follows : (SCC pp. 72324, para 3)
“3. 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 overstress 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 [(1999) 1 SCC 37 : AIR
1999 SC 287], 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:
(SCC p. 44, paras 1718)
“ … ‘A lawyer is under obligation to do
17.
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
courtroom.’ [ Warevelle's Legal Ethics , p. 182]
18. 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 a group of them can boycott the
courts or any particular court and ask the
court to desist from discharging judicial
functions. 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 society, being a member of the legal
profession, this Court in O.P. Sharma v. High Court of
P&H [(2011) 6 SCC 86 : (2011) 3 SCC (Civ) 218 : (2011)
2 SCC (Cri) 821 : (2011) 2 SCC (L&S) 11] has observed
that : (SCC p. 92, para 17)
“ 17. The role and status of lawyers at the
beginning of sovereign and democratic India is
accounted as extremely vital in deciding that
the nation's administration was to be governed
by the rule of law.”
The Bench emphasised on the role of eminent
lawyers in the framing of the Constitution. The
emphasis was also laid on the concept that lawyers are
the officers of the court in the administration of justice.
In R.K. Garg v. State of H.P. [(1981) 3 SCC 166 :
22.
1981 SCC (Cri) 663] , Chandrachud, C.J., speaking for
the Court pertaining to the relationship between the
Bench and the Bar, opined thus : (SCC p. 170, para 9)
“ 9. … 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 courtroom.
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.”
5.5 Today the judiciary and the justice delivery system is facing
acute problem of delay which ultimately affects the right of the litigant
to access to justice and the speedy trial. Arrears are mounting
because of such delay and dilatory tactics and asking repeated
adjournments by the advocates and mechanically and in routine
manner granted by the courts. It cannot be disputed that due to delay
in access to justice and not getting the timely justice it may shaken
the trust and confidence of the litigants in the justice delivery system.
Many a times, the task of adjournments is used to kill Justice.
Repeated adjournments break the back of the litigants. The courts are
enjoying upon to perform their duties with the object of strengthening
the confidence of common man in the institution entrusted with the
administration of the justice. Any effort which weakens the system
and shake the faith of the common man in the justice dispensation
has to be discouraged. Therefore the courts shall not grant the
adjournments in routine manner and mechanically and shall not be a
party to cause for delay in dispensing the justice. The courts have to
be diligence and take timely action in order to usher in efficient justice
dispensation system and maintain faith in rule of law. We are also
aware that whenever the trial courts refused to grant unnecessary
adjournments many a times they are accused of being strict and they
may face displeasure of the Bar. However, the judicial officers shall
not worry about that if his conscience is clear and the judicial officer
has to bear in mind his duties to the litigants who are before the
courts and who have come for justice and for whom Courts are meant
and all efforts shall be made by the courts to provide timely justice to
the litigants. Take an example of the present case. Suit was for
eviction. Many a times the suits are filed for eviction on the ground of
bonafide requirements of the landlord. If plaintiff who seeks eviction
decree on the ground of personal bonafide requirement is not getting
the timely justice and he ultimately gets the decree after 10 to 15
years, at times cause for getting the eviction decree on the ground of
personal bonafide requirement may be defeated. The resultant effect
would be that such a litigant would lose confidence in the justice
delivery system and instead of filing civil suit and following the law he
may adopt the other mode which has no backing of law and ultimately
it affects the rule of law. Therefore, the court shall be very slow in
granting adjournments and as observed hereinabove they shall not
grant repeated adjournments in routine manner. Time has now come
to change the work culture and get out of the adjournment culture so
that confidence and trust put by the litigants in the Justice delivery
system is not shaken and Rule of Law is maintained.
5.6 In view of the above and for the reasons stated above and
considering the fact that in the present case ten times adjournments
were given between 2015 to 2019 and twice the orders were passed
granting time for cross examination as a last chance and that too at
one point of time even a cost was also imposed and even thereafter
also when lastly the High Court passed an order with extending the
time it was specifically mentioned that no further time shall be
extended and/or granted still the petitioner – defendant never availed
of the liberty and the grace shown. In fact it can be said that the
petitioner – defendant misused the liberty and the grace shown by the
court. It is reported that as such now even the main suit has been
disposed of. In view of the circumstances, the present SLPs deserve to
be dismissed and are accordingly dismissed.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(A. S. BOPANNA)
New Delhi,
September 20, 2021
ITEM NO.9 Court 13 (Video Conferencing) SECTION IV-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 14117-14118/2021
(Arising out of impugned final judgment and order dated 17-02-2021
in MP No. 107/2021 17-02-2021 in MP No. 108/2021 passed by the High
Court Of M.P. At Indore)
ISHWARLAL MALI RATHOD Petitioner(s)
VERSUS
GOPAL & ORS. Respondent(s)
(FOR ADMISSION and I.R. and IA No.114249/2021-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT and IA No.114248/2021-EXEMPTION FROM
FILING O.T.)
Date : 20-09-2021 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE M.R. SHAH
HON'BLE MR. JUSTICE A.S. BOPANNA
For Petitioner(s) Mr. N.K. Mody, Sr. Adv.
Mr. Shishir Kumar Saxena, Adv.
Mr. R.N. Pareek, Adv.
Mr. Prabhuddha Singh, Adv.
Ms. Soumya Chaturvedi, Adv.
Ms. Sharmila, Adv.
Mr. Praveen Swarup, AOR
For Respondent(s)
UPON hearing the counsel the Court made the following
O R D E R
The Special Leave Petitions are dismissed in terms of the
signed order.
Pending applications, if any, stand disposed of.
(R. NATARAJAN) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS BRANCH OFFICER
(Signed order is placed on the file)
ITEM NO.9 Court 13 (Video Conferencing) SECTION IV-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 14117-14118/2021
(Arising out of impugned final judgment and order dated 17-02-2021
in MP No. 107/2021 17-02-2021 in MP No. 108/2021 passed by the High
Court Of M.P. At Indore)
ISHWARLAL MALI RATHOD Petitioner(s)
VERSUS
GOPAL & ORS. Respondent(s)
(FOR ADMISSION and I.R. and IA No.114249/2021-EXEMPTION FROM FILING
C/C OF THE IMPUGNED JUDGMENT and IA No.114248/2021-EXEMPTION FROM
FILING O.T.)
Date : 20-09-2021 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE M.R. SHAH
HON'BLE MR. JUSTICE A.S. BOPANNA
For Petitioner(s) Mr. N.K. Mody, Sr. Adv.
Mr. Shishir Kumar Saxena, Adv.
Mr. R.N. Pareek, Adv.
Mr. Prabhuddha Singh, Adv.
Ms. Soumya Chaturvedi, Adv.
Ms. Sharmila, Adv.
Mr. Praveen Swarup, AOR
For Respondent(s)
UPON hearing the counsel the Court made the following
O R D E R
Heard Mr. Shishir Kumar Saxena, learned counsel appearing for
the petitioner.
The Special Leave Petitions are dismissed.
Reasoned Order to follow.
(R. NATARAJAN) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS BRANCH OFFICER