Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 4555 4559 OF 2021
(Arising out of SLP (C) Nos.86438647 of 2021)
NEERAJ GARG APPELLANT(S)
VERSUS
SARITA RANI AND ORS. ETC RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
1. Leave granted. The appellant is a practicing lawyer, before the High
Court of Uttarakhand with around 17 years standing as member of the
Bar. The present appeal is limited to expunging certain observations
made against the appellant by the learned Judge of the High Court while
deciding four cases in which the appellant was representing one of the
contesting parties. The following are the orders and proceedings of the
High Court with which, we are concerned in this matter:
Signature Not Verified
Digitally signed by
Anita Malhotra
Date: 2021.08.02
18:17:10 IST
Reason:
“W.P. (M/S) No.2216 of 2017 and W.P. (M/S) No.2208 of
2017 titled Vira Wali Manga Vs. Sarita Rani, S.A.
No.190/2019 titled Landour Community Hospital Vs.
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Sandeep Bishnoi . S.A. No. 182 of 2019 titled Vinod
Kumar Vs. Mandir Laxmi, W.P. (M/S) No. 519 of 2019
titled Parul Prakash Vs. Anil Prakash .”
This Court issued returnable notice in the matter on 02.07.2021 and
2.
appointed Mr. Amar Dave as the amicus curiae to assist the Court. Mr.
Dave appears and makes submissions accordingly. The Office Report in
the case reflects that the Counsel for the Appellant has circulated a
letter dated 13.07.2021 stating therein that the Petition has been filed
only for expunging certain observations recorded against the Appellant
by the High Court in the concerned cases and the Appellant is not
seeking any relief against any of the arrayed Respondents and as such
they be treated as Proforma Respondents.
Representing the appellant, Mr. Mukul Rohatgi, the learned Senior
3.
Counsel submits that the appellant is regularly practicing in the
Uttarakhand High Court with a fairly large practice. The Counsel then
submits that the remarks/observations made by the learned Judge
against the Appellant were recorded without putting the counsel to
notice or providing any hearing to him, before recording the adverse
comments. It is also submitted that those recordings are neither
essential nor necessary for the Court’s verdict in the concerned cases.
According to Mr. Rohatgi, such adverse comments will not only
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undermine the professional reputation of the Appellant but would also
impact his standing and practice as a lawyer.
4. The learned amicus curiae , Mr. Amar Dave, together with the
learned Senior Counsel Mr. Mukul Rohatgi have drawn specific
attention of this Court to the following remarks in the High Court’s
judgement dated 14.11.2017, in the W.P. (M/S) No.2216 of 2017 and
W.P. (M/S) No.2208 of 2017, where the Appellant was appearing for one
of the contesting parties in the case.
“ *
16. I express my deep anguish and hesitantly
refraining myself from taking any action against the
counsel for the petitioner for producing only part of
document and placing reliance on the same for
procuring an interim order by suppressing material
fact.
17. The counsel for the petitioner is a seasonal
advocate he owes a responsibility towards the
institution and fraternity too, he had deliberately
created a wrong example for the pious institution.
” *
5. Similarly, in the second case, i.e., S.A. No.190/2019 the learned
Judge on 22.11.2019 recorded the following comments:
“
2. In the present Second Appeal , when the argument
for the learned counsel for the appellant was initiated
too be addressed for quite some time, this Court is of
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the view that the tenacity of argument of the learned
counsel for the plaintiff/ appellant was in a manner as
if, he was intentionally attempting to make a mountain
of a mole, which this Court will not hesitate to re mark
that was a brutal assassination of time for those other
litigants, whose matters were pending consideration
on the said date before this Court. 'It further reflected
that as if it was not an argument for the case but
rather for the visitors' gallery.
* ”
6. In the third judgement, i.e., S.A. 182 of 2019 dated 12.03.2020, the
following unacceptable conduct of the counsel was noted:
“ *
In order to avoid an argument at admission stage of
the present Second Appeal, before this Court, the
learned counsel for the appellant submitted that in a
prior proceedings which was held before this Court by
way of Writ Petition (M/S) No. 604 of 2009, Sri Vinod
Goel v. Sri Sushi/ Chandra Sabbarwal & Another,
since I had appeared as a counsel on behalf of the
defendant/appellant herein, an attempt was made at
a later stage of arguments, to avoid to address of the
Second Appeal on its merits before this Court.
* ”
7. In the fourth case, W.P.(M/S) 519 of 2019, the Court on 22.02.2021,
noted its displeasure against the counsel in the following manner:
“
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2. Though this Court should have avoided to make
this remark, but owning to the deliberate and
intentional, modus operandi, which is normally
adopted, which has now, become a regular feature,
almost in most of the cases, which are filed by the
learned counsel for the petitioner, this Court is
constraint to make certain observations, which has
been invariably found, to be followed by the learned
Counsel, basically intended so as to mislead the
Court or to avoid an adjudication of the case on
merits and to pose the difficulty to the Court, at the
time of hearing of the Writ Petition itself at admission
stage, itself, by putting uncalled for documents, which
are not even relevant, including the copy of the
citation/judgments, on which he wants to rely, as
part of the records of the Writ Petition, making the
records of the Writ Petition, running into several
volumes, and that too in a writ jurisdiction under
Article 227 of the Constitution of India, which is
arising of the concurrent judgments.
3. This has been a clear and a consistent device, and
a tactics which has been adopted by the learned
counsel for the petitioner, by placing voluminous
records in the Writ Petition, including the copies of
precedent/ judgments, on which, the reliance has
been placed by the learned counsel for the petitioner,
which in the instant case happens to be about 20
judgments, which the petitioner's counsel contends to
rely on, in support of his case, as against the
concurrent finding of facts, which has been recorded
by both the Courts, below and that too in a summary
proceedings, which were held, under Section 21(1)(a)
of Act No. 13 of 1972. Though for the reasons to be
recorded hereinafter, it could be apparently inferred,
that even most of the judgments, on which, reliance
has been made, are not even relevant for the purposes
of consideration of the case, and even they may not be
applicable under the facts and circumstances of the
present case.
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4. This attitude, adopted cannot be ruled out to be a
professional and a strategic device, which is being
adopted, so that Court may at the stage of hearing for
admission of writ, due to paucity of time, would be
constraint to admit, even the Writ Petitions, which are
arising from concurrent judgments, in a summary
rent control proceedings, where grant of interim order
would become inevitable during its pendency, besides
being taxing on the litigant also, to meet the
artificially escalated expenses too, and this strategy is
not an isolated example, but rather it is a regular
feature, which had been adopted by the Counsel, as a
routine in most of the cases, which are being
instituted from his Chamber. This methodology is
being deliberately adopted with a premonition, that if
judgment is put to challenge before a superior
platform, he may have his argument protected that
the judgment relied by him, and which were on
record, before the Court, were not considered by the
Court, and thus the judgment is a consequence of
nonapplication of mind, by the High Court.
52. This Court before addressing the judgment relied,
on its merit, this Court had a l ready observed in para
2, 3 and 4 of the judgment, the modus operandi, of
the counsel for the petitioner to place reliance on the
irrelevant judgments, which had got no significance or
its applicability, under the facts and circumstances of
the present case, and this Court has already
consciously observed that the intention behind
making reference to the judgement, was to mislead
the Court and to buy time in prolonging the
proceedings in order to overcome the effect of
dismissal of the concurrent, Writ Petitions in limine
by placing voluminous judgements on records, and
making references of them, by quoting its excerpts.
* ”
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8. The Appellant contends that the above referred comments in the
judicial orders of the High Court against the Counsel’s conduct were not
needed for adjudication of the matters under consideration. In any case,
the observations could not have been recorded without putting the
counsel on notice about the intention of the Court. It is also submitted
that by virtue of the remarks recorded against the Appellant, his hard
earned reputation has been tarnished. To project that such remarks
were unmerited, Mr. Rohatgi points out that the Appellant, with an
otherwise unblemished professional record, had no occasion to suffer
such adverse remarks from any other judge of the High Court. Since
the concerned Presiding Judge, before his elevation on 19.05.2017 to
the Bench, was a member of the same Bar as the Appellant and both
were rival counsel in several contested matters, Mr. Rohatgi submits
that the comments may have emanated from personal prejudice and
may not be otherwise warranted. Accordingly, it is argued that the
Appellant should not be made to suffer adverse comments on his
conduct as a lawyer only because the concerned Judge may not
appreciate the efforts made by the Counsel, on behalf of his client.
9. To press home the argument that the offending remarks against the
counsel are unmerited, and do not meet the required parameters, the
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learned Sr. Counsel has cited State of U.P. vs. Mohammad Naim where
Justice S.K. Das laid down the following tests to be applied while dealing
with the question of expunction of disparaging remarks against a person
whose conduct comes in for consideration before a Court of law. Those
tests are:
(a) Whether the party whose conduct is in question is before
the court or has an opportunity of explaining or defending
himself;
(b) Whether there is evidence on record bearing on that
conduct justifying the remarks; and
(c) Whether it is necessary for the decision of the case, as an
integral part thereof, to animadvert on that conduct.
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10. In Alok Kumar Roy Vs. Dr. S.N. Sarma , in the opinion written by
Justice C.K.Wanchoo for a Five Judges Bench, this Court had
emphasized that even in cases of justified criticism, the language
employed must be of utmost restraint. The use of carping language to
disapprove of the conduct of the Counsel would not be an act of
sobriety, moderation or restraint.
1 AIR 1964 SC 703
2 (1968) 1 SCR 813
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11. The judgement of this Court in A.M. Mathur Vs. Pramod Kumar
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Gupta , delivered by Justice K Jagannatha Shetty, elaborates on the
need to avoid even the appearance of bitterness. The Court observed
that,
“13…The duty of restraint, this humility of function
should be constant theme of our judges. This
quality in decision making is as much necessary for
judges to command respect as to protect the
independence of the judiciary. Judicial restraint in
this regard might be better called judicial respect,
that is respect by the judiciary…”
12. The importance of avoiding unsavory remarks in judicial orders as
per established norms of judicial propriety has also been succinctly
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noted in Abani Kanta Ray Vs. State of Orissa by Justice J.S. Verma, in
the following words,
“Use of intemperate language or making
disparaging remarks against anyone, unless that be
the requirement for deciding the case, is
inconsistent with judicial behaviors. Written words
in judicial orders are for permanent record which
make it even more necessary to practice self
restraint in exercise of judicial power while making
written orders.”
3 (1990) 2 SCC 533
4 1995 Supp (4) SCC 169
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13. The principles laid down as above, have been quoted with
approval and applied by this Court in several subsequent judgments,
including for a 3 Judge Bench in Samya Sett Vs. Shambhu Sarkar and
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Another . In this case Justice C.K. Thakker, writing for the Court
opined that the adverse remarks recorded were neither necessary for
deciding the controversy raised before the Court nor an integral part of
the judgement, and accordingly directed deletion of those remarks.
The proposition of law laid down by Justice S.K. Das on behalf
14.
of the Four Judges Bench in Mohammed Naim (Supra) on recording of
adverse remarks has been approved in a catena of decisions since
1964. It was also cited by the Supreme Court of Sri Lanka in A.N.
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Perera Vs. D.L.H. Perera and Ors. where Abdul Kadir J. speaking for
the Bench approved of the tests laid down by this Court and concluded
that the judge’s comments against the petitioner in that case were
thoroughly unwarranted under each of those tests.
15. While it is of fundamental importance in the realm of
administration of justice to allow the judges to discharge their functions
freely and fearlessly and without interference by anyone, it is equally
important for the judges to be exercising restraint and avoid
5 (2005) 6 SCC 767
6 1982 SCC SL SC 20
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unnecessary remarks on the conduct of the counsel which may have no
bearing on the adjudication of the dispute before the Court.
16. Having perused the offending comments recorded in the High
Court judgments, we feel that those could have been avoided as they
were unnecessary for deciding the disputes. Moreover, they appear to
be based on the personal perception of the learned Judge. It is also
apparent that the learned Judge did not, before recording the adverse
comments, give any opportunity to the Appellant to put forth his
explanation. The remarks so recorded have cast aspersion on the
professional integrity of the appellant. Such condemnation of the
Counsel, without giving him an opportunity of being heard would be a
negation of the principles of audi alteram partem . The requisite degree
of restraint and sobriety expected in such situations is also found to be
missing in the offending comments.
17. The tenor of the remarks recorded against the appellant will not
only demean him amongst his professional colleagues but may also
adversely impact his professional career. If the comments remain
unexpunged in the court judgments, it will be a cross that the
Appellant will have to bear, all his life. To allow him to suffer thus,
would in our view be prejudicial and unjust.
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18. In view of the forgoing, we are of the considered opinion that
the offending remarks recorded by the learned judge against the
appellant should not have been recorded in the manner it was done.
The appellant whose professional conduct was questioned, was not
provided any opportunity to explain his conduct or defend himself. The
comments were also unnecessary for the decision of the Court. It is
accordingly held that the offending remarks should be recalled to avoid
any future harm to the appellant’s reputation or his work as a member
of the Bar. We therefore order expunction of the extracted remarks in
paragraphs 4,5,6, and 7 of this judgement. The appeals are accordingly
disposed of with this order.
…………………………………………J.
[ROHINTON FALI NARIMAN]
…………………………………………J.
[HRISHIKESH ROY]
NEW DELHI
AUGUST 02, 2021
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