Full Judgment Text
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PETITIONER:
NIRANKAR NATH WAHI AND OTHERS
Vs.
RESPONDENT:
FIFTH ADDL. DISTRICT JUDGE, MORADABAD AND ORS.
DATE OF JUDGMENT07/06/1984
BENCH:
THAKKAR, M.P. (J)
BENCH:
THAKKAR, M.P. (J)
SEN, A.P. (J)
CITATION:
1984 AIR 1268 1984 SCR (3) 917
1984 SCALE (1)921
ACT:
Code of Civil Procedure 1908 Order 17 and Order 20-
Adjournment-Request for further adjournment to engage Senior
Counsel refused-District Judge keeping judgment ready and
pronouncing judgment dismissing appeal-Procedure whether
just, fair and reasonable.
Practice and Procedure: Adjournment-Request for by
appellant to engage Senior Counsel-Refused of-District Judge
keeping judgment ready and delivering judgment-Whether there
is denial of reasonable opportunity of hearing-Whether
procedure adopted by District Judge in preparation and
pronouncement of judgment vitiated.
HEADNOTE:
The appellant in the appeal was the landlord. He sought
an adjournment of the hearing of his appeal that was pending
before the Additional District Judge on the ground of
indisposition of his senior counsel. The respondent tenant
was a leading member of the local bar. The Additional
District Judge refused the prayer, but granted three days’
time for making alternative arrangements and directed that
the appeal be posted for hearing of further arguments and
that on failure to urge arguments, the judgment would be
pronounced. On the adjourned date, the appellant again
sought adjournment on the ground that he could not secure
the services of his out-station senior counsel and that his
counsel would not be able to appear for at least a month and
that he may be granted further time to engage another senior
counsel. The Additional District Judge refused the
adjournment on the ground that more than sufficient time had
been granted for additional arguments, and added: "The
judgment is ready which is delivered". The appeal was
dismissed by pronouncing the judgment which had been kept
’ready for being delivered’.
A writ petition to the High Court by the appellant
under Art. 227 was rejected in limine.
In the appeal to this Court, it was contended on behalf
of the appellant that: (1) as the respondent was a leading
and influential member of the local bar, members of the
local bar were not willing to appear in the matter and that
the appellant was genuinely handicapped in securing the
services of an out-station senior counsel and (2) that even
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though the appeal was fixed for making further oral
submissions on the adjourned date, the Additional District
Judge kept the judgment ready and pronounced it when the
appellant appeared and requested for further time to engage
a senior counsel.
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Allowing the appeal,
^
HELD: The judgment rendered by the District Judge is
vitiated by reason of the failure to grant reasonable
opportunity of hearing to the appellant and by reason of the
procedure adopted in connection with the preparation and
pronouncement of the judgment. The High Court also erred in
rejecting the writ petition summarily. The judgment and
order passed by the High Court as well as those passed by
the Additional District Judge are set aside and the matter
remitted to the Court of the District Judge for being
disposed of, after affording a reasonable opportunity of
hearing to both the parties.
[924-G-925 B]
In the eyes of litigant a senior member of the bar when
shed personally, might enjoy certain amount of sympathy with
the members of the judiciary before whom he is practising
day in and day out. This aspect cannot be overlooked having
regard to the realities of life. [922 D]
The learned Judge should have shown awareness of this
dimension of the matter and bearing in mind the adage that
’justice must also appear to have been done’, ought to have
dealt with the request for a short adjournment with a degree
of understanding. [922 E]
It is common knowledge that when a leading member of
the Bar is sued or sues in a personal capacity, the members
of the Bar where he is practising are more than reluctant to
accept a brief against the colleague and friend on account
of personal relations or on account of likelihood of
embarrassment. In a matter like this, the litigant pitted
against a leading member of the Bar, may also want to engage
a counsel of his choice and confidence for it may well
appear to him that not every member of the Bar might present
his case with the degree of zeal, enthusiasm sincerity and
conviction which ordinarily a litigant expects from his
advocate. [922 H ; 923 A]
The learned Judge could not have armed himself with a
readymade judgment dismissing the appeal when further
arguments on behalf of the appellant were yet to be heard.
And apparently there was no time-compulsion to pronounce the
judgment on that very day. The Judgment rendered by the
learned Judge is thus vitiated by reason of the failure to
grant reasonable opportunity of hearing to the appellant and
by reason of the procedure adopted in connection with the
preparation and pronouncement of the judgment. [924 F-G]
It was also not difficult to realise that a landlord is
the last person interested in prolonging the eviction
proceedings or the appeal arising from the order passed in
such proceedings. The Additional District Judge should have
shown awareness of this dimension of the matter, and under
the circumstances, might well have granted a short
adjournment to enable the appellant to engage a senior
counsel of his choice and confidence. [922 F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2562 of
1984.
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From the Judgment and Order dated 21.7.1983 of the
Allahabad High Court in WP No. 8933 of 1983.
R.B. Mehrotra Advocate for the appellants.
K.P. Gupta Advocate for the respondents.
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The Judgment of the Court was delivered by
THAKKAR, J. "Justice", we do not tire of saying, "must
not only be done", but "must be seen to done". And yet at
times some Courts suffer from temporary amnesia and forget
these words of wisdom. In the result, a Court occasionally
adopts a procedure which does not meet the high standards
set for itself by the judiciary. The present matter falls in
that unfortunate category of cases. That is the reason why,
though we do not feel very happy in doing so, we have had to
grant special leave for disposing of the appeal not on
merits, but only for the purpose of setting aside the
impugned judgment rendered by the learned Additional
District Judge, Moradabad. To set it aside on the ground
that the procedure adopted by the learned Judge at the
hearing of the appeal was not just and fair. And in order to
consequently remand the matter for hearing the appeal afresh
with a view to dispose it of on merits in accordance with
law.
The order-sheet of May 20, 1983 of the record of the
appeal in the Court of the learned District Judge shows that
the appellant sought adjournment on the ground of
indisposition of his senior counsel from Saharanpur with a
request that the appeal be adjourned to some date in July.
The learned Additional District Judge refused the prayer but
granted three days’ time for making alternative arrangement
and directed that the appeal be posted for hearing of
further arguments on May 23, 1983. He further directed that
in the event of failure to urge arguments on May 23, 1983,
’the judgment will be pronounced.’ Even so, the appellant
again sought an adjournment on the ground that he could not
secure the services of his senior counsel from Sharanpur as
he was not able to appear till the month of July, and prayed
for some time to engage a senior counsel from Moradabad. The
learned Additional District Judge refused the adjournment on
the ground that more than sufficient time had been granted
for additional arguments, rejected the prayer for
adjournment, and then added:
"The judgment is ready which is delivered."
The appeal was dismissed by the learned Additional
District Judge by pronouncing the judgment which the learned
Judge had kept ready for being delivered. As the Act does
not provide for any further appeal or revision, the High
Court was approached under Art. 227 of the Constitution of
India, but the High Court rejected the Writ Petition in
limine. Hence the present appeal by special leave.
920
The following facts emerge from the order-sheet:
(1) On May 12, 1983 the learned Additional District
Judge had felt that the request made by the
appellant for further arguments was justified and
had granted it.
(2) On May 20, 1983 the Court granted only three days’
time to make alternative arrangement in view of
the fact that the senior counsel from Saharanpur
engaged by the appellant was not in a position to
appear on account of illness.
(3) On 23rd May, 1983, the arguments were to be heard.
Notwithstanding that the arguments were yet to be
heard on this date, the learned Judge had kept the
judgment ready for pronouncing, which he
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pronounced forthwith wilts refusing the prayer for
adjournment made by the appellant with a view to
engage a senior advocate from the local bar since
the Advocate from Saharanpur already engaged by
him was not available.
Two infirmities have been pointed out to us in support
of the plea that the procedure adopted was not just and
fair:
(i) Even though the appellant was genuinely
handicapped in securing the services of a senior
advocate to appear for him in the matter having
regard to the fact that respondent No, 3 Kailash
Sahai Mathur was a leading and influential member
of the Moradabad Bar and members, of the local Bar
were not willing to appear against him in his
personal matter, the learned Additional District
Judge did not afford him a reasonable opportunity
for engaging an Advocate ;
(ii) Even though the appeal was fixed for making
further oral submissions, on the day fixed for
this purpose, the learned Additional District
Judge had kept his judgment ready and pronounced
it when the appellant applied for further time to
engage a senior member of the Bar to represent
him.
We do not consider it necessary to delve deep into the
facts. It is sufficient for our purposes to say that the
said Respondent, on his own showing, is a leading and
influential member of the Moradabad Bar as is evident from
the following passage extracted from the written objections
filed by the said Respondent himself at the trial :
921
"He has been a member of the State Bar Council for
a number of years and also been Vice President of the
U.P. Lawyers Conference. The opposite party has been
Secretary, Vice-President and President of the Bar
Association, Moradabad. He is also manager of S.R.A.N.
Intermediate College, Moradabad. He is a founder life-
member of the Moradabad Civil Courts Club. He has been
President of the Moradabad Rotary Club and is its
member for the last about 33 years. He has also been
Worshipful Master of the Masonic Lodge."
"He has been member of the Senate, Law Faculty and
Board of studies of the Agra University. He is also
connected with other Clubs and social and educational
institutions. The opposite party was also the founder
Secretary of the Moradabad Branch of the Indian Law
Institute. In his various capacities, the opposite
party has to meet a variety of persons, junior lawyers,
teachers, rotaries, social worker, clients etc. each
day. He has also a huge library and so stated above a
fairly good number of family members staying with him,
all this makes even the space at the disposal of the
opposite party such too cramped."
It has also been established that the appellant was
finding it extremely difficult to engage a lawyer to
represent him as he was pitted against a senior and
influential member of the Bar personally, and was seeking
his eviction from premises in his personal occupation for
use as his residence-cum-office. A leading member of the Bar
had already returned the brief, and a senior member of the
Bar from Saharanpur Bar engaged by the appellant had been
repeatedly asking him to seek adjournments instead of
appearing in the Court to argue the matter on the appointed
day. The adjournments were sought presumably because of his
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understandable reluctance to appear against a professional
brother in a matter where he was personally concerned.
We have no hesitation in assuming that no Court would
ever be influenced by the fact that the Respondent was a
leading member of the Bar and influential person inasmuch as
in the eye of law all citizens are entitled to equal
treatment having regard to the doctrine of equality before
law. If a case for eviction was made out under the relevant
statute, the Court would not hesitate to
922
release the accommodation by ordering eviction against the
respondent notwithstanding his status in the legal world or
in the society. If on merits, the application under Sec. 21
(1) (a) and/or under Sec. 21 (1A) of the Act deserved to be
disallowed, the appeal would be dismissed just as it would
be dismissed against any other tenant by reason of the fact
that it was wanting in merits, not because the respondent
enjoyed a particular status in the profession or in the
society. This is what everyone associated with the world of
law is doubtless expected to know. But a litigant who is
pitted against such an influential member of the Bar having
such a high status in the society, who himself mentions in
his affidavit these facts, can be excused for not being
aware of the doctrine of equality before law, not only in
theory but also in practice.
So also the learned Judge might well have realised that
the appellant was fighting a litigation in which a very
senior member of the bar was personally impleaded as a
defendant (respondent) and that it was understandable if he
was labouring under a psychological complex. The complex is
understandable because in the eyes of a litigant a senior
member of the bar when sued personally, might enjoy certain
amount of sympathy with the members of the judiciary before
whom he is practising day in and day out. This aspect cannot
be overlooked having regard to the realities of life.
The learned judge should have shown awareness of this
dimension of the matter and bearing in mind the adage that
’justice must also appear to have been done’, ought to have
dealt with the request for a short adjournment with a degree
of understanding. More particularly as it was not difficult
to realise that a landlord is the last person interested in
prolonging the eviction proceedings or the appeal arising
from the order passed in such proceedings. The learned
Additional District Judge, under the circumstances, might
well have granted a short adjournment to enable the
appellant to engage a senior counsel of his choice and
confidence. For this reason: It is common knowledge that
when a leading member of the Bar is sued or sues in a
personal capacity, the members of the Bar where he is
practising are more than reluctant to accept a brief against
their colleague and friend on account of personal relations
or on account of likelihood of embarrassment. In a matter
like this, the litigant pitted against a leading member of
the Bar may also want to engage a counsel of his choice and
confidence for it may well appear to him that not every
member of the Bar might
923
present his case with the degree of zeal, enthusiasm,
sincerity and conviction which ordinarily a litigant expects
from his advocate.
We are afraid that these vital aspects were overlooked
by the learned Judge when he granted only three days’ time
to make alternative arrangement for engaging a local senior
counsel by reason of the fact that the Saharanpur Advocate
engaged by the appellant was not in a position to appear on
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the ground of illness. This short adjournment for three days
was granted vide order dated May 20, 1983. But on May 23,
1983, the learned Judge refused to grant further time to the
appellant who had not been able to make suitable arrangement
for engaging a counsel on that date. We are of the opinion
that the appellant has been denied a reasonable opportunity
of hearing, and that the grievance made by the appellant, as
regards the procedure adopted by the learned Judge on this
score, is not unfounded. This is one of the two reasons
which has impelled us to set aside the order passed by the
learned Additional District Judge and to remand the matter
for a fresh decision in accordance with law after affording
reasonable opportunity of hearing to the parties.
The second ground has also been substantiated in the
sense that the appellant cannot be faulted for entertaining
the misgiving that the procedure adopted was not in tune
with one’s sense of justice. The grievance this time arises
on account of the fact that even though May 23, 1983 was
fixed for hearing of further oral arguments, the learned
Judge had kept a judgment ready for being pronounced and he
proceeded to pronounce it forthwith whilst refusing the
prayer for adjournment made by the appellant. It is not in
dispute that on May 23, 1983 the learned Additional District
Judge had granted three days’ time to the appellant to
enable him to engage an advocate to make further oral
submissions. Since the matter was posted on 23rd May, 1983,
for further oral arguments, the learned Judge could not have
commenced writing his judgment till further arguments were
heard on that day or the request for adjournment, if any,
was refused. No objection could have been taken if on
turning down the request for adjournment on May 23, 1983,
the learned Judge had commenced writing or dictating his
judgment in the Court. But he had kept his judgment
(dismissing the appeal) ready for being pronounced. When the
appellant made a request for an adjournment for engaging an
advocate, the request was turned down and the judgment
prepared
924
in advance, dismissing the appeal, was straightaway
pronounced. As we pointed out earlier, the learned Judge
could be expected to be aware of the fact that the appellant
being a landlord seeking an eviction order was not
interested in unnecessarily prolonging the hearing of the
appeal. He also could not have been unaware of the fact that
the respondent was a leading member of the local Bar and an
influential person and that under the circumstances a
citizen who was pitted against him in a personal litigation
was likely to feel that he was not getting just and fair
treatment if the judgment was kept ready in anticipation
that the request for adjournment was going to be made and
was going to be refused. Supposing no request for
adjournment was made and a senior advocate had appeared on
behalf of the appellant what would have happened ? Before
hearing his arguments, the learned Judge had already made up
his mind and kept ready a judgment wherein he had reached
the conclusion that there was no substance in the appeal.
These embarrassing facts stare one in the eye. We do not
think that fault can be found with the appellant if he felt,
as any other litigant would have perhaps felt, that the
procedure adopted was lacking in fairness. In fairness to
the learned Judge, we must mention that in his order dated
May 20, 1983, he had observed as under:-
"Appeal adjourned to 23-5-83 for additional
arguments failing which judgment would be pronounced."
But the fact remains that the learned Judge could not
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have armed himself with a ready-made judgment dismissing the
appeal when further arguments on behalf of the appellant
were yet to be heard. And apparently there was no time-
compulsion to pronounce the judgment on that very day, The
judgment rendered by the learned Judge is thus vitiated by
reason of the failure to grant reasonable opportunity of
hearing to the appellant and by reason of the procedure
adopted in connection with the preparation and pronouncement
of the judgment. We may incidentally observe that we are
also distressed that the High Court rejected the petition
summarily in the face of these features and obliged the
appellant to approach this Court.
Under the circumstances the appeal must be allowed. The
judgment and order passed by the Allahabad High Court as
well as those passed by the learned Additional District
Judge are set aside and the matter is remitted to the Court
of the District Judge,
925
Moradabad for being disposed of in accordance with law. In
view of what has transpired, we direct that the learned
District Judge himself shall hear the appeal, and after
according reasonable opportunity of hearing to both the
parties to make their submissions, dispose it of in
accordance with law uninfluenced by anything that might have
been stated in the judgment which is being set aside. The
learned District Judge shall dispose of the appeal as
expeditiously as possible, and, in any event, not later than
within four months from the date of receipt of a copy of
this judgment, which we hereby direct the office to send to
the learned District Judge ’forthwith’.
There shall be no order as to costs.
N.V.K. Appeal allowed.
926