‘A Lawyer Cannot Avoid A Judge’: Kerala HC Recalls Former CJ’s Order To Not Post Cases Of Some Lawyers Before A Particular Judge
'A judge can recuse from a case. A judge can avoid a lawyer. But a lawyer cannot avoid a judge '.The decision by former Chief Justice has been suo moto recalled by Administrative Committee headed by new Acting Chief Justice.
An unusual order passed by the former Chief Justice Antony Dominic accepting the request of four lawyers not to post their cases before Justice V.Chitambaresh has been recalled by the Administrative Committee headed by the new Acting Chief Justice Hrishikesh Roy.
“It creates a bad precedent and may encourage bench hunting/forum shopping”, states the decision taken by the new Administrative Committee.
The decision related to cases in which Senior Advocate K. Jayakumar, Senior Advocate S.V Balakrishna Iyer, Advocate P.B.Krishnan and Advocate P.B Subramanian were appearing. Former Chief Justice Antony Dominic took this decision on May 28, a day prior to his retirement
Backdrop of a missing case file.
The unusual decision was taken in the backdrop of a missing case file.
The case which is central to the controversy is Regular First Appeal [R.F.A 172/2016].The appeal arose from a decree ordering specific performance of agreement of sale. The defendants filed appeal after serving copy on the plaintiffs who had filed caveat in the High Court. The appeal was not coming up for hearing even after urgent memos were filed. The Registry informed that original files were missing. The files had to be reconstructed with photocopies. When the Division Bench headed by Justice Chitambaresh noticed the missing of files, it ordered enquiry by the Vigilance wing of the High Court. Enquiry report revealed that a theft had taken place. Valuable papers were missing even in the third set of RFA. Vigilance report indicated the involvement of lawyers and clerks in the missing of files. The Division Bench was about to order police investigation in the matter. But the then Administrative Committee intervened, and ordered disciplinary proceedings against staff instead.
While so, the lawyers made a representation before the then Chief Justice Mohan Shanthanagouder, requesting not to post their cases before Justice Chitambaresh, complaining bias. But that was not considered by the then Chief Justice. The next CJ Navaniti Prasad Singh also did not accept the request.
However, the third Chief Justice Antony Dominic passed order on the date prior to his retirement. He posted the RFA before the DB of Justice Surendra Mohan. Also, Justice Dominic passed an order not to post the cases of those 4 lawyers before Justice Chitambaresh. However the administrative Committee did not interfere with order of posting the said RFA before Justice Surendra Mohan as Justice Chitambaresh recused from hearing the case.
This controversial order has been suo moto recalled by the present Administrative Committee. Earlier this week, another instance of file missing rocked the High Court, when Justice Sudheendra Kumar ordered vigilance enquiry into the missing of files relating to criminal case against Malabar Cements, terming it as an “orchestrated event”.