ISHWARLAL MALI RATHOD versus GOPAL AND ORS.

ISHWARLAL MALI RATHOD

GOPAL AND ORS.

Special Leave Petition (Civil Nos. 14117 – 14118 of 2021)

SEPTEMBER 20, 2021

[M. R. SHAH AND A. S. BOPANNA, JJ.]

Administration of Justice – Abuse of process of law – Repeatedadjournments – Respondent-plaintiff filed suit inter alia for evictionin 2013 – Petitioner-defendant’s right to cross examine the plaintiff’switness was eventually closed in 2020 – Confirmed by High Court

– Held: Ten times adjournments were given between 2015 to 2019

– Twice the adjournments were granted as last opportunity andeven cost was imposed – Trial Court and even the High Courtcontinued to grant adjournments and as such contributed the delayin disposal of the suit – Adequate liberty was given to the defendantto cross examine the plaintiff’s witness who never availed of thesame and went on delaying the proceedings – Main suit is disposedof now – Petition dismissed.

Administration of Justice – Justice delivery system – Delay –Grant of adjournments – Duty of Courts – Discussed.

Shiv Cotex v. Tirgun Auto Plast (P) Ltd. (2011) 9 SCC678 : [2011] 10 SCR 787; Babu Singh v. State of U.P.(1978) 1 SCC 579 : [1978] 2 SCR 777; NoorMohammed v. Jethanand and Anr. (2013) 5 SCC 202 :[2013] 3 SCR 1146 – relied on.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Special Leave PetitionCivil Nos.14117-14118 of 2021.

From the Judgment and Order dated 17.02.2021 of the High Courtof Madhya Pradesh, Bench at Indore in M.P. No.107 and 108 of 2021.

AN. K. Mody, Sr. Adv., Shishir Kumar Saxena, R. N. Pareek,Prabhuddha Singh, Ms. Soumya Chaturvedi, Ms. Sharmila, PraveenSwarup, Advs. for the Appellant.

The Order of the Court was passed by

M. R. SHAH, J.B

1. Present is the classic example of misuse of the adjournmentsgranted by the court. Present SLPs have been preferred challengingthe impugned order dated 17.02.2021 passed by the High Court of MadhyaPradesh, Bench at Indore in M.P. No.107 of 2021 and M.P. No. 108 of2021 by which the High Court has dismissed the said misc. petitionCpreferred by the petitioner – original defendant, confirming the order passedby the learned Trial Court dated 21.12.2020 closing the right tocross-examine the plaintiff’s witness.

2. Respondents No.1 to 4 herein filed suit for eviction, arrears ofrents and mesne profit against one Ramchandra (now dead) and theDpresent petitioner on 14.08.2013. Petitioner herein – defendant filedthe written statement and issues were framed. On 12.05.2014 plaintiffsfiled an affidavit under Order XVIII Rule 4 of the CPC which wasobjected by the petitioner and again the plaintiffs filed an affidavit on07.03.2015. From 12.05.2015 till 02.12.2019 at least ten times theEdefendants sought adjournments which were granted by the court. Lastlythe adjournment was given with cost as last opportunity. Despite thesame the petitioner – defendant did not cross-examine the plaintiff’switness. On 14.10.2019 time for cross examination was given with costof Rs.5,000/- and with the condition that in any case they fail to crossexamine, their right of cross examination would be treated as closed.FDespite the same, the petitioner – defendant did not cross examine theplaintiff’s witness and therefore on 05.11.2019 their right was treated asclosed. The petitioner approached the High Court by filing miscellaneouspetition No.6283 of 2019 by which the right of the petitioner – defendantto cross examine the plaintiff’s witness was closed. Though no leniencyGwas required to be shown the High Court allowed the said petition bygranting last opportunity to the defendants to cross examine the witness.Despite the same the petitioner – defendant did not even thereafter alsocross examine the plaintiff’s witness. The suit was fixed for crossexamination of plaintiff’s witness on 21.12.2020. On 21.12.2020 again

the counsel appearing on behalf of the petitioner – defendant filed anapplication seeking adjournment. Considering the fact that earlier numberof adjournments were granted and the opportunity was given to thepetitioner – defendant to cross examine the plaintiff’s witness and despitethe same the defendant fail to cross examine the plaintiff’s witness, thelearned Trial Court vide order dated 21.12.2020 closed the right of thecross-examining the plaintiff’s witness. The order passed by the learnedTrial Court has been confirmed by the High Court by the impugnedjudgment and order.

3. We have heard the learned counsel appearing on behalf of thepetitioner-defendant.

4. As observed hereinabove, present is classic example ofmisuse of adjournments granted by the court. It is to be noted that therespondents herein – original plaintiffs filed the suit for eviction, arrearsof rent and mesne profit as far as back in the year 2013. That thereafterdespite the repeated adjournments sought and granted by the court andeven twice the adjournments were granted as last opportunity andeven the cost was imposed, the defendant failed to cross examine theplaintiff’s witness. Although the adequate liberty was given to thedefendant to cross examine the plaintiff’s witness, they never availed ofthe same and went on delaying the proceedings by repeated prayers ofadjournment and unfortunately the Trial Court and even subsequentlythe High Court continued to grant adjournment after adjournment andas such contributed the delay in disposal of the suit which as such wasfor eviction.Such approach is wholly condemnable. Law and professionalethics do not permit such practice. Repeated adjournments on one or theother pretext and adopting the dilatory tactics is an insult to justice andconcept of speedy disposal of cases. Petitioner – defendant acted in amanner to cause colossal insult to justice and to concept of speedy disposalof civil litigation.

5. Grant of repeated adjournments in routine manner and how itaffects ultimately the justice delivery system as such came to beconsidered by this court in catena of decisions and asking/grant ofrepeated 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:-

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A“14. … Is the court obliged to give adjournment after adjournmentmerely because the stakes are high in the dispute? Should thecourt be silent spectator and leave control of the case to aparty 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 JudgesBare little proactive and refuse to accede to the requests ofunnecessary adjournments, the litigants deploy all sorts of methodsin protracting the litigation. It is not surprising that civil disputesdrag on and on. The misplaced sympathy and indulgence by theappellate and revisional courts compound the malady further. TheCcase in hand is case of such misplaced sympathy. It is hightime that courts become sensitive to delays in justice deliverysystem and realise that adjournments do dent the efficacy of thejudicial 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 everyDdate of hearing, effective progress takes place in the suit.

16. No litigant has right to abuse the procedure provided in CPC.Adjournments have grown like cancer corroding the entire bodyof justice delivery system.

E17. … party to the suit is not at liberty to proceed with the trialat its leisure and pleasure and has no right to determine when theevidence would be let in by it or the matter should be heard. Theparties to suit—whether the plaintiff or the defendant—mustcooperate with the court in ensuring the effective work on thedate of hearing for which the matter has been fixed. If they don’t,Fthey do so at their own peril.”

5.2 Commenting on the delay in the justice-delivery system,although in respect of the criminal trial, Krishna Iyer, J. in the case ofBabu Singh v. State of U.P. (1978) 1 SCC 579 has observed in paragraph4 as under:-G

“4. … Our justice system, even in grave cases, suffers from slowmotion syndrome which is lethal to ‘fair trial’, whatever the ultimatedecision. Speedy justice is component of social justice since thecommunity, as whole, is concerned in the criminal being condignlyand finally punished within reasonable time and the innocentHbeing 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 repeatedadjournments sought by the lawyers and granted by the courts, thiscourt has observed in paragraph 1, 12, 13, 27 and 28 as under:-

“1. In democratic body polity which is governed by writtenConstitution and where the Rule of Law is paramount, the judiciaryis regarded as sentinel on the qui vive not only to protect thefundamental rights of the citizens but also to see that thedemocratic values as enshrined in the Constitution are respectedand the faith and hope of the people in the constitutional systemare not atrophied. Sacrosanctity of the Rule of Law neitherrecognises master and slave nor does it conceive of rulerand subject but, in quintessentiality, encapsules and sings in gloryof the values of liberty, equality and justice in accordance withlaw requiring the present generation to have the responsibility tosustain them with all fairness for the posterity ostracising allaffectations. To maintain the sacredness of democracy, sacrificein continuum by every member of the collective is categoricalimperative. The fundamental conception of democracy can onlybe preserved as colossal and priceless treasure where virtueand values of justice rule supreme and intellectual anaemia is keptat 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. Itwould not be an exaggeration to state that it is the primary moralityof justice and ethical fulcrum of the judiciary. Its profundity liesin not allowing anything to cripple the same or to do any act whichwould freeze it or make it suffer from impotency. Delayeddelineation of controversy in court of law creates dent in thenormative dispensation of justice and in the ultimate eventuate,the Bench and the Bar gradually lose their reverence, for thesense of divinity and nobility really flows from the institutionalserviceability. Therefore, historically, emphasis has been laid onindividual institutionalism and collective institutionalism of anadjudicator while administering justice. It can be stated withoutany fear of contradiction that the collective collegiality can neverbe regarded as an alien concept to speedy dispensation of justice.That is the hallmark of duty, and that is the real measure.

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12. The proceedings in the second appeal before the High Court,if we allow ourselves to say so, epitomises the corrosive effectthat adjournments can have on litigation and how lis can getentangled in the tentacles of an octopus. The philosophy of justice,the role of lawyer and the court, the obligation of litigant andall legislative commands, the nobility of the Bench and the Bar,the ability and efficiency of all concerned and ultimately the divinityof law are likely to make way for apathy and indifference whendelay of the present nature takes place, for procrastination on thepart of anyone destroys the values of life and creates catastrophicturbulence in the sanctity of law. The virtues of adjudication cannotbe allowed to be paralysed by adjournments and non-demonstration of due diligence to deal with the matter. One cannotbe oblivious to the feeling necessities of the time. No one canafford to sit in an ivory tower. Neither Judge nor lawyer canignore “the total push and pressure of the cosmos”. It is devastatingto expect infinite patience. Change of attitude is the warrant andcommand of the day. We may recall with profit what JusticeCardozo had said: “It is true, I think, today in every departmentof the law that the social value of rule has become test ofgrowing power and importance.” [ Benjamin N. Cardozo, TheNature of Judicial Process (Cosimo Inc., 2009) 73]

13. It has to be kept in mind that the time of leisure has to begiven decent burial. The sooner it takes place, the better it is. Itis the obligation of the present generation to march with the timeand remind oneself every moment that the rule of law is thecentripodal concern and delay in delineation and disposal of casesinjects an artificial virus and becomes vitiating element. Theunfortunate characteristics of endemic delays have to be avoidedat any cost. One has to bear in mind that this is the day, this is thehour and this is the moment, when all soldiers of law fight fromthe 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 theJudges, the lawyers and the litigants is matter of perpetualconcern and the same has to be reflected upon every moment. Anattitude 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 shouldmake any maladroit effort to create concavity in the same.Procrastination, whether at the individual or institutional level, is asystemic disorder. Its corrosive effect and impact is like disorderlystate of the physical frame of man suffering from an incurableand fast progressive malignancy. Delay either by the functionariesof the court or the members of the Bar significantly exhibitsindolence and one can aphoristically say, borrowing line fromSouthwell “creeping snails have the weakest force” [ RobertSouthwell, “Loss in Delay”, in William B. Turnbull (Ed.), ThePoetical Works of the Rev. Robert Southwell (John RussellSmith, London 1856), p. 60.]. Slightly more than five decades back,talking about the responsibility of the lawyers, Nizer Louis had putthus:

“I consider it lawyer’s task to bring calm and confidence tothe distressed client. Almost everyone who comes to lawoffice is emotionally affected by problem. It is only matterof degree and of the client’s inner resources to withstand thepressure.” [ Nizer Louis, My Life in Court (Doubleday &Co. Inc., New York 1961), p. 213]

few lines from the illustrious Justice Frankfurter is fruitfulto recapitulate:

“I think person who throughout his life is nothing but practisinglawyer fulfils very great and essential function in the life ofsociety. Think of the responsibilities on the one hand, and thesatisfaction on the other, to be lawyer in the true sense.” [ FelixFrankfurter, “Proceedings in Honor of Mr. Justice Frankfurterand Distinguished Allumni, Occasional Pamphlet No. 3” (HarvardLaw School, Cambridge, 1960), pp. 4-5]

28. In democratic set-up, intrinsic and embedded faith in theadjudicatory system is of seminal and pivotal concern. Delaygradually declines the citizenry faith in the system. It is the faithand faith alone that keeps the system alive. It provides oxygenconstantly. Fragmentation of faith has the effect-potentiality tobring in state of cataclysm where justice may become casualty.A litigant expects reasoned verdict from temperate Judge butdoes not intend to and, rightly so, to guillotine much of time at the

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Aaltar of reasons. Timely delivery of justice keeps the faith ingrainedand establishes the sustained stability. Access to speedy justice isregarded as human right which is deeply rooted in the foundationalconcept of democracy and such right is not only the creation oflaw but also natural right. This right can be fully ripened by therequisite commitment of all concerned with the system. It cannotBbe regarded as facet of Utopianism because such thought islikely to make the right mirage losing the centrality of purpose.Therefore, whoever has role to play in the justice-dispensationsystem cannot be allowed to remotely conceive of casualapproach.”

C5.4 In the aforesaid decision, this court also considered the role ofadvocate in the justice delivery system and considered the earlier decisionsin paragraphs 17 to 22 which read as under:-

“17. In Ramon Services (P) Ltd. v. Subhash Kapoor [(2001) 1SCC 118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152 : AIR 2001DSC 207], after referring to passage from Mahabir Prasad Singhv. Jacks Aviation (P) Ltd. [(1999) 1 SCC 37 : AIR 1999 SC 287],the Court cautioned thus : (Ramon Services case [(2001) 1 SCC118 : 2001 SCC (Cri) 3 : 2001 SCC (L&S) 152 : AIR 2001 SC207], SCC p. 126, para 15)

“15. … Nonetheless we put the profession to notice that in futurethe advocate would also be answerable for the consequencesuffered by the party if the non-appearance was solely on theground of strike call. It is unjust and inequitable to cause theparty alone to suffer for the self-imposed dereliction of his advocate.FWe may further add that the litigant who suffers entirely on accountof his advocate’s non- appearance in court, has also the remedyto sue the advocate for damages but that remedy would remainunaffected by the course adopted in this case. Even so, in situationslike this, when the court mulcts the party with costs for the failureof his advocate to appear, we make it clear that the same courtGhas power to permit the party to realise the costs from the advocateconcerned. However, such direction can be passed only afteraffording an opportunity to the advocate. If he has any justifiablecause the court can certainly absolve him from such liability.”

Be it noted, though the said passage was stated in the context ofstrike by the lawyers, yet it has its accent on non-appearance by counselin the court.

18. In this context, we may refer to the pronouncement inPandurang Dattatraya Khandekar v. Bar Council ofMaharashtra [(1984) 2 SCC 556 : 1984 SCC (Cri) 335] , whereinthe Court observed that : (SCC p. 563, para 9)

“9. … An advocate stands in loco parentis towards the litigantsand it therefore follows that the client is entitled to receivedisinterested, sincere and honest treatment especially wherethe client approaches the advocate for succour in times of need.”

19. In Lt. Col. S.J. Chaudhary v. State (Delhi Admn.) [(1984) 1SCC 722 : 1984 SCC (Cri) 163 : AIR 1984 SC 618] , three-JudgeBench, while dealing with the role of an advocate in criminaltrial, has observed as follows : (SCC pp. 723-24, para 3)

“3. We are unable to appreciate the difficulty said to beexperienced by the petitioner. It is stated that his advocate isfinding it difficult to attend the court from day to day. It is theduty of every advocate, who accepts the brief in criminalcase to attend the trial from day to day. We cannot over-stressthe duty of the advocate to attend to the trial from day to day.Having accepted the brief, he will be committing breach ofhis professional duty, if he so fails to attend.”

20. In Mahabir Prasad Singh [(1999) 1 SCC 37 : AIR 1999 SC287], the Bench, laying emphasis on the obligation of lawyer inhis duty towards the Court and the duty of the Court to the Bar,has ruled as under: (SCC p. 44, paras 17-18)

“17. … ‘A lawyer is under obligation to do nothing that shalldetract from the dignity of the court of which he is himself asworn officer and assistant. He should at all times pay deferentialrespect to the Judge, and scrupulously observe the decorum ofthe courtroom.’ [Warevelle’s Legal Ethics, p. 182]

18. Of course, it is not unilateral affair. There is reciprocalduty for the court also to be courteous to the members of theBar and to make every endeavour for maintaining and protectingthe respect which members of the Bar are entitled to have

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from their clients as well as from the litigant public. Both theBench and the Bar are the two inextricable wings of the judicialforum and therefore the aforesaid mutual respect is sine quanon for the efficient functioning of the solemn work carried onin courts of law. But that does not mean that any advocate ora group of them can boycott the courts or any particular courtand ask the court to desist from discharging judicial functions.At any rate, no advocate can ask the court to avoid case onthe ground that he does not want to appear in that court.”

21. While recapitulating the duties of lawyer towards the courtand society, being member of the legal profession, this Court inO.P. Sharma v. High Court of P&H [(2011) 6 SCC 86 : (2011) 3SCC (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 sovereignand democratic India is accounted as extremely vital in decidingthat the nation’s administration was to be governed by the ruleof law.”

The Bench emphasised on the role of eminent lawyers inthe framing of the Constitution. The emphasis was also laid onthe concept that lawyers are the officers of the court in theadministration of justice.

22. In R.K. Garg v. State of H.P. [(1981) 3 SCC 166 : 1981 SCC(Cri) 663], Chandrachud, C.J., speaking for the Court pertainingto 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 thesame mechanism which administers justice to the people. Manymembers of the Bench are drawn from the Bar and their pastassociation is source of inspiration and pride to them. It oughtto be matter of equal pride to the Bar. It is unquestionablytrue that courtesy breeds courtesy and just as charity has tobegin at home, courtesy must begin with the Judge. Adiscourteous Judge is like an ill- tuned instrument in the settingof courtroom. But members of the Bar will do well toremember that such flagrant violations of professional ethics

and cultured conduct will only result in the ultimate destructionof system without which no democracy can survive.”

5.5 Today the judiciary and the justice delivery system is facingacute problem of delay which ultimately affects the right of the litigant toaccess to justice and the speedy trial. Arrears are mounting because ofsuch delay and dilatory tactics and asking repeated adjournments by theadvocates and mechanically and in routine manner granted by the courts.It cannot be disputed that due to delay in access to justice and notgetting the timely justice it may shaken the trust and confidence of thelitigants in the justice delivery system. Many times, the task ofadjournments is used to kill Justice. Repeated adjournments break theback of the litigants. The courts are enjoying upon to perform their dutieswith the object of strengthening the confidence of common man in theinstitution entrusted with the administration of the justice. Any effortwhich weakens the system and shake the faith of the common man inthe justice dispensation has to be discouraged. Therefore the courts shallnot grant the adjournments in routine manner and mechanically and shallnot be party to cause for delay in dispensing the justice. The courtshave to be diligence and take timely action in order to usher in efficientjustice dispensation system and maintain faith in rule of law. We arealso aware that whenever the trial courts refused to grant unnecessaryadjournments many times they are accused of being strict and theymay face displeasure of the Bar. However, the judicial officers shallnot worry about that if his conscience is clear and the judicial officer hasto bear in mind his duties to the litigants who are before the courts andwho have come for justice and for whom Courts are meant and all effortsshall be made by the courts to provide timely justice to the litigants. Takean example of the present case. Suit was for eviction. Many times thesuits are filed for eviction on the ground of bonafide requirements of thelandlord. If plaintiff who seeks eviction decree on the ground of personalbonafide requirement is not getting the timely justice and he ultimatelygets the decree after 10 to 15 years, at times cause for getting the evictiondecree on the ground of personal bonafide requirement may be defeated.The resultant effect would be that such litigant would lose confidencein the justice delivery system and instead of filing civil suit and followingthe law he may adopt the other mode which has no backing of law andultimately it affects the rule of law. Therefore, the court shall be veryslow in granting adjournments and as observed hereinabove they shallnot grant repeated adjournments in routine manner. Time has now come

Ato change the work culture and get out of the adjournment culture sothat confidence and trust put by the litigants in the Justice deliverysystem is not shaken and Rule of Law is maintained.

5.6 In view of the above and for the reasons stated above andconsidering the fact that in the present case ten times adjournmentsBwere given between 2015 to 2019 and twice the orders were passedgranting time for cross examination as last chance and that too at onepoint of time even cost was also imposed and even thereafter alsowhen lastly the High Court passed an order with extending the time itwas specifically mentioned that no further time shall be extended and/orgranted still the petitioner – defendant never availed of the liberty andCthe grace shown. In fact it can be said that the petitioner – defendantmisused the liberty and the grace shown by the court. It is reported thatas such now even the main suit has been disposed of. In view of thecircumstances, the present SLPs deserve to be dismissed and areaccordingly dismissed.

Divya Pandey

SLPs dismissed.