Justice GS Patel of the Bombay High Court has urged Bar members to be mindful of their duty as officials of the court as “judges need the Bar and look to it for a dispassionate guidance through the law’s thickets”.
Justice Patel made these observations while pronouncing a judgment on an application filed in a suit regarding a property dispute between family members.
While Sanjay Jain appeared for the plaintiff in this matter, Rishabh Shah appeared for the defendants. As recorded in the order, Shah cited four separate decisions in support of his arguments however, two of these decisions that were of a single bench of the high court, were set aside in appeal. This was not mentioned by Shah.
The court observed that since even on the day of the pronouncement, Shah maintained that the decisions he had cited were good in law, he was completely unaware of the appeal court orders that set aside these decisions.
Justice Patel recalled the decision by Justice AM Khanwilkar in Chandrakant Govind Sutar v MK Associates & Anr.
In this case, the petitioner’s counsel argued regarding maintainability of a civil revision application. His arguments were accepted by the bench and Khanwilkar J pronounced the judgment on open court.
However, counsel for the petitioner brought to the court’s notice that certain relevant decisions on maintainability had not been placed. He requested that the judgment be not signed and instead kept for re-hearing on the question of maintainability.
At that fresh hearing, petitioner’s counsel placed decisions that clinched the issue - against the petitioner. The civil revision application was dismissed.
On the conduct of the petitioner’s counsel, Khanwilkar J made the following observation: “While parting I would like to make a special mention regarding the fairness of Mr. Oka, Advocate. He conducted the matter with a sense of detachment. In his own inimitable style, he did the wonderful act of balancing of his duty to his client and as an officer of the Court concerned in the administration of justice. He has fully discharged his overriding duty to the Court to the standards of his profession, and to the public, by not withholding authorities which go against his client.”
The counsel in question was Justice Abhay Oka who was practicing at that time.
Justice Patel further observed: “Thirteen years ago, Khanwilkar J wrote of a code of honour. This was a time when we did not have the range, width and speed of resources we do today. With the proliferation of online databases and access to past orders on the High Court website, there is no excuse at all for not cross-checking the status of a judgment. I have had no other or greater access in conducting this research; all of it was easily available to counsel at my bar. Merely because a judgment is found in an online database does not make it a binding precedent without checking whether it has been confirmed or set aside in appeal.”
Observing that it is often the case that appellate orders reversing reported lower court orders are themselves not reported, Justice Patel said: “The task of an advocate is perhaps more onerous as a result; but his duty to the court, that duty of fidelity to the law, is not in any way lessened. If anything, it is higher now.”
Read the Judgment here.