SC Relief To A Litigant Who Suffered Ex-Parte Decree Due To Bar Association's Call For Court Boycott [Read Judgment]
"We are conscious of the fact that all the three courts have held against the appellant, but if we allow the impugned orders to stand, it will result in miscarriage of justice."
"It is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council.", the Supreme Court said in Ex-Capt. Harish Uppal vs Union Of India, in the year 2002. But calls for court boycott/strike still continue unabated and obviously it is the litigant who suffers.
Recently, the Supreme Court set aside an ex-parte decree passed by Sub-court, Chidambaram, in 2009, providing relief to the defendant who suffered the ex-parte decree because of a court-boycott call by Bar Association.
Murugesan was a defendant in a specific performance suit. This case was listed for hearing on 16.03.2009. Unfortunately, on the very same day, there was a boycott of all the courts on the call of Bar Association. All the advocates boycotted the courts in the District of Cuddalore including Chidambaram District. As a result, his lawyer could not appear in the case.
But the Trial Court called the case and as there was no representation on his behalf, proceeded ex-parte and decreed the suit filed by plaintiff.
He filed an application under Order IX Rule 13 of Code of Civil Procedure, for setting aside the ex-parte decree. But the Trial court rejected this application. The Additional District Court and the High Court upheld the dismissal. One of the reason for rejecting the application was long pendency of the suit.
Before the Apex Court, Murugesan's lawyer contended that all the courts rejected the application by looking at the past events. Relying on G.P. Srivastava vs. R.K. Raizada, it was contended that when the application is filed under Order IX Rule 13 of CPC, the relevant consideration should have been confined to whether he has shown any sufficient cause or not for not appearing in the matter when it was called on 16.03.2009. The counsel for the plaintiff objected to this contention, highlighting that though the suit was of the year 1997, the defendant tried his best to prolong the litigation on one pretext or the other.
The bench comprising Justice R. Banumathi and Justice R. Subhash Reddy noted that in GP Srivastava case, it was held that, if "sufficient cause" is made out for non-appearance of the defendant on the date fixed for hearing when ex pate proceedings were initiated against him, he cannot be penalised for his previous negligence which had been overlooked and thereby condoned earlier. The bench said:
"The aforesaid view taken by this Court in the judgment referred above supports the case of the appellant. It is further brought to our notice that on the aforesaid date, i.e., 16.03.2009, on which date the suit was listed for trial, in view of the boycott of the courts by the advocates, all other cases were adjourned and only this case was proceeded and ex-parte decree was passed."
Taking into account the reasons cited in the application for setting aside ex-parte decree, the bench said that it is satisfied that the defendant has shown sufficient cause for not appearing in the matter when the matter was called on 16.03.2009. While setting aside the order of all the three courts, the bench said: "All the courts below committed error in rejecting the application on the grounds which are not relevant to consider the application filed under Order IX Rule 13 of CPC. 14. We are conscious of the fact that all the three courts have held against the appellant, but if we allow the impugned orders to stand, it will result in miscarriage of justice."
Lawyer's duty is to boldly ignore a call for strike or boycott of Courts
It is pertinent to read again the observations made by three judge bench in in Ex-Capt. Harish Uppal vs Union Of India.
Thus the law is already well settled. It is the duty of every Advocate who has accepted a brief to attend trial, even though it may go on day to day and for a prolonged period. It is also settled law that a lawyer who has accepted a brief cannot refuse to attend Court because a boycott call is given by the Bar Association. It is settled law that it is unprofessional as well as unbecoming for a lawyer who has accepted a brief to refuse to attend Court even in pursuance of a call for strike or boycott by the Bar Association or the Bar Council. It is settled law that Courts are under an obligation to hear and decide cases brought before it and cannot adjourn matters merely because lawyers are on strike. The law is that it is the duty and obligation of Courts to go on with matters or otherwise it would tantamount to becoming a privy to the strike. It is also settled law that if a resolution is passed by Bar Associations expressing want of confidence in judicial officers it would amount to scandalising the Courts to undermine its authority and thereby the Advocates will have committed contempt of Court. Lawyers have known, at least since Mahabir Singh's case (supra) that if they participate in a boycott or a strike, their action is ex-facie bad in view of the declaration of law by this Court. A lawyer's duty is to boldly ignore a call for strike or boycott of Court/s. Lawyers have also known, at least since Roman Services' case, that the Advocates would be answerable for the consequences suffered by their clients if the non-appearance was solely on grounds of a strike call.