CMA No.106080 of 2017 - Application for condonation of delay
1. Heard learned counsel for the parties.
2. For the reasons disclosed in the affidavit filed in support of application, the application of condonation of delay is allowed.
3. Accordingly, the dealy in filing the writ petition is hereby condoned.
CMA No.106082 of 2017 - Application for recall of order dated 04.09.2015
1. Heard learned counsel for the parties.
2. This case was decided vide judgment and order dated 04.09.2015, wherein it has been recorded that appointment of the petitioner on the post of Assistant Teacher was made by the Committee of Management, which is not empowered to make appointment. Thereafter, the counsel for the petitioner made statement that the petitioner is getting salary regularly and he is working, therefore, recording the statement of counsel for the petitioner, the writ petition was dismissed as having been rendered infructuous.
3. On perusal of the application, it is evident that Sri Deo Prakash Srivastava, Advocate is subsequently engaged counsel.
4. Learned counsel for the respondents placed reliance on the following judgments on the point that an application for recall/ modification cannot be maintained by a subsequently engaged counsel, which are as under :-
(i) Kaniz Fatma & Others Vs. Additional District Judge & Others [2008 (70) ALR 361]. Relevant paragraphs 25 and 26 are quoted below :-
"25. 1 am therefore of the considered view that once the writ petition has been decided on merits, the scope of review is very limited and successive review applications are not maintainable. The first review application has been filed by a subsequent counsel Sri Khalil Ahmad without consent of the original counsel who IS alleged to have given a wrong undertaking before the Court has neither filed review application nor has appeared in the Court to admit or deny the allegations made against him. It would be laying down a bad precedent to allow successive review applications by subsequent counsel by making allegations against the original counsel engaged initially. In the first review application the Court has considered all the aspects of the matter in its judgment and order dated 20.3.2007 by holding that the matter cannot be reopened by engaging another counsel.
26. Now the second review application has been filed, which has been argued by Sri Man Mohan Sharma, another subsequently engaged Counsel. Nothing wild allegations stating that the petitioners had not given any instructions to the counsel for praying for time for vacating the shop premises. As stated earlier the first review application was filed by Sri Mohd. Khalil Ahamad which was supported by affidavit of petitioner No. 3 for himself and for other petitioners in which there was no allegation against the original counsel."
(ii) Gour Gopal Dutt & Others Vs. Shantilata Mitra & Others. Relevant paragraphs 7, 8 and 9 are quoted below :-
"7. The next point argued was whether an undertaking given to Court is an order of Court. To my mind, immediately an undertaking given to Court is incorporated in the order of Court, it becomes a part of the order of Court. Reliance was placed on the case of Biba Ltd. v. Stratford Investments Ltd., reported in (1972) 3 All ER 1041 which says that an undertaking given to Court and embodied in the written order of the Court had the same effect as a judgment or order of Court. In support of his contention Mr. Ghose relied on a case (Suretennessa Bibi v. Chintaharan Das). It is a Division Bench Judgment where a tenant gave an unconditional and unqualified undertaking to vacate the premises on a certain date and on his failure it was held that he is guilty of deliberate breach of undertaking given by him to the Hon'ble Court and as such, he is guilty of misconduct amounting to contempt of Court. Similarly, in a case reported in (1964) 68 Cal WN 148 which is also a Division Bench .Judgment (Lala Shyam Sundar v. Lala Balji Nath Prasad) the learned Judges followed the earr Her decision and in this case also breach of undertaking was construed as contempt of Court. Mr. Ghose further argued that by giving the undertaking the respondents derived considerable benefit to the detriment of the petitioner and it will be unjust and improper if after enjoying the benefit given to them and their solemn undertaking given to Court they are allowed to resile from the same with impunity. If any one is allowed to get away so easily from solemn undertaking then undertaking to Court loses all significance.
8. Mr. Anindya Mitter, appearing for Sabita Ghose points out that his client as well as Mrs. Amita Bose have given up their rights in favour of their brothers. In that view of the matter and in view of the fact that they are sisters and old mother and are all ladies, though they are technically guilty of contempt of Court but I do not inflict punishment on them.
9. I hold that the two brothers, Samirendra Nath Mitra and Sailendra Nath Mitra are guilty of Contempt of Court. Before awarding punishment, I called both the brothers to depose before me for the purpose of assessing them and ascertaining their conditions. Both of them appeared to me to be docile, middle class Bengalee gentlemen but obviously they have a very glorified or exalted notion of their legal rights which prompted them to deliberately violate and flout the order of this Hon'ble Court. I doubt whether these glorified ideas of the legal rights are their own ideas or inspired by someone. I need not say anything more. I must note that though in their affidavits filed by them in paragraph 25 they have tendered unqualified apology to this Court but while arguing their counsel did not point out or did not say a word that they are sorry for their conduct or that they are tendering any apology. In paragraph 25 they have stated "In any event we humbly tender our unqualified apology to this Hon'ble Court". It will be a sad day for the Court if the Court allows the solemn undertaking given to this Court to be mere papers signifying nothing. The parties and litigants must know and appreciate that they should not be allowed to treat the solemn undertaking given to this Hon'ble Court like a child's play. Undertaking to Court and legal rights are entirely different and separate matters."
(iii) Delhi Pradesh Med. Pvt. Assn. Vs. Union of India & Others [Review Petition (Civil) No.2279 of 2010]. Relevant paragraph 9 is quoted below :-
"9. As is evident from the abve that entertaining the review petition is proved not only a futile exercise but sheet wastage of judicial time. Applicant has not disclosed anywhere as to whether any grievance has ever been raised by it against the counsel who remained negligent and did not render any service to it. Reply to our first order dated 27.1.2011 has been filed urging that Court is bound to give way to the entitlements of litigants. We are of the considered opinion that such conduct of the litigant has not only been reprehensible but is tantamount to abuse of the process of the court. We are not able to appreciate as to whether the petition was filed to satisfy the ego of the litigant or the litigant was ill-advised by the members of the Bar just for petty pecuniary gain. The petition has been filed without realizing that the courts are over burdened and no litigant should mis-use the forum of the court merely because litigation is a luxury for him. The review application has been filed on frivolous grounds as neither in the petition, nor during the course of hearing could the error/ mistake in the judgment either on law or on facts be pointed out."
(iv) Tamil Nadu Electricity Board and Others Vs. N. Raju Reddiar and others [AIR 1997 SC 1005]. Relevant paragraph 1 is quoted below :-
"1. It is a sad spectacle that new practice unbecoming of worthy and conducive to the profession is cropping up. Mr. Mariaputham, Advocate-on-Record had filed vakalatnama for the petitioner-respondent when the special leave petition was filed. After the matter was disposed of, Mr. V. Balachandran, Advocate had filed a petition for review. That was also dismissed by this Court on April 24, 1996. Yet another advocate, Mr. S.U.K. Sagar, has now been engaged to file the present application styled as "application for clarification", on the specious plea that the order is not clear and unambiguous. When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed; that too by the advocate on record who neither appeared nor was party in the main case. It is salutary to not that court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine; that too, with change of counsel, without obtaining consent of the advocate on record at earlier stage. This is not conducive to healthy practice of the Bar which has the responsibility to maintain the salutary practice of profession. In Review Petition No.2670/96 in CA No.1867/92, a Bench of three Judges to which one of us, K. Ramaswamy,J., was a member, has held as under:
"The record of the appeal indicates that Shri Sudarsh Menon was heard and decided on merits. The Review Petition has been filed by Shri Prabir Chowdhury who was neither an arguing counsel when the appeal was heard nor was he present at the time of arguments. It is unknown on what basis he has written the grounds in the Review Petition as if it is a rehearing of an appeal against our order. He did not confine to the scope of review. It would be not in the interest of the profession to permit such practice. That part, he has not obtained " No Objection Certificate" from the Advocate-on-Record in the appeal, in spite of the fact that Registry had informed him of the requirement for doing so. Filing of the "No Objection Certificate" would be the basis for him to come on record. Otherwise, the Advocate-on-Record is answerable to the Court. The failure to obtain the "No Objection Certificate" from the erstwhile counsel has disentitled him to file the Review Petition. Even otherwise, the Review Petition has no merits, It is an attempt to reargue the matter on merits. On these grounds, we dismiss the Review Petition".
(v) Sidheswar Mishra Vs. State of U.P. & Others [2006 (9) ADJ 427]. Relevant paragraphs 4 to 14 are quoted below :-
"4. It is also submitted by the counsel for the petitioner that notices on behalf of the Corporation had been received by Sri R.D. Khare, counsel for the U.P. Power Corporation who is authorized to receive notices on behalf of the Corporation as such it cannot be said that respondents had no notice or information about the case or orders passed on the writ petition. The judgment dated 31.1.2006 is also not exparte as it has been passed after hearing Sri R.D. Khare counsel for the respondents and case haws been decided on merit.
5. The averments in the recall application that that reason of not filing counter affidavit is that no information was received from Sri R.D. Khare, Advocate for filing the counter affidavit and in absence of receipt of any previous orders dated 31.8.2005 and 22.12.2005, which were communicated to the Chief Engineer, Hydle, U.P. Power Corporation, 14 Ashok Marg, Shakti Bhavan, Lucknow, is fallacious. It is entirely between the Corporation and its counsel. Admittedly the Corporation has appointed Advocates on its panel to receive notices and represent them. Whether the counsel sent the information to the Corporation or not is a matter not in controversy in this petition. It is sufficient that orders were passed after hearing the counsel for the parties and judgment was given on merits.
6. It appears that on 31.5.2005, Advocates were on strike. However, when the matter was taken up, counsel for the respondents was granted a month's time and no more for filing counter affidavit. Order dated 31.8.2005 is as under:
Advocates are on strike. Learned Counsel for the petitioner and respondent Nos. 1 and 2 are not present.
I have perused the record.
A month's and no more is granted for filing counter-affidavit. Rejoinder affidavit may be filed within three weeks thereafter.
List this petition after expiry of the aforesaid period.
7. Thereafter the case was listed on 27.10.2005 when again one months further time was granted for filing the counter affidavit as a last opportunity. The case was then listed on 16.1.2006 but was passed over on the joint request of the parties but no counter affidavit was filed. The case was next listed on 23.1.2006. On this date Sri R.D. Khare sent his illness slips. The case was lastly listed on 31.1.2006 when it was decided on merit in absence of counter affidavit after hearing the counsel for the parties.
8. It has been repeatedly held by the Apex Court that the lawyers' strikes are illegal and that effective steps should be taken to stop the growing tendency to go on strikes as they have no right to go on strike. If a lawyer, holding a Vakalatnama of a client, abstains from attending court due to a strike call, he puts himself to personal risk and liability for any action that may be taken by his client.
9. In Pandurang Duttatravs Khandekar v. Bar Council of Maharashtra , Tahil Ram Issar Das Sadarangam v. Ramchand Issardas Sadarangam (1993) (3) SCC 256; Common Clause A. Registered Society v. Union of India (1995) 3 SCC 19; Sanjeev Dutta v. Ministry of Information & Broadcasting ; Indian Council of Legal Aid & Advice v. Bar Council of India ; K. Jhon Koshi v. Dr. Tarakeshwar Prasad Shaw ; Mahabir Prasad Singh v. Jacks Aviation (P) Ltd. and Ex. Captain Harish Uppal v. Union of India it was held by the Supreme Court that the advocates have no right to go on strike and the Courts are under no obligation to adjourn the cases on the board because lawyers are on strike. The Courts are not to be privy to such strikes which amounts to denial of justice to the litigants.
10. The judiciary is accountable to the public and the dispensation of justice cannot be stopped for any reason including strike by lawyers. The apex court has held that right to speedy justice is included in Article 21 of the Constitution of India. In A.R. Antulay v. R.S. Nayak and Raj Deo Sharma v. State of Bihar, it was held that the litigant has a right to speedy justice.
11. Similarly in Manoj Kumar v. Civil Judge, Deoria (Writ Petition No. 33778 of 1997 decided on 10.10.97), the Division Bench of this Court has held that:
Before parting with this case, we would like to mention that it is deeply regrettable and highly objectionble that there are strikes in District Courts in U.P. in flimsy and frivolous pretexts and some District Courts function only for about 60 or 70 days in a year. This is a shocking state of affairs and will no longer be tolerated by this Court. The judiciary and bar are both accountable to the public and they must behave in a reasonable manner so that cases are decided quickly and thus the faith of the public in the judiciary is maintained. Surely, the public has a right to expect this from us.
12. The same view is followed in Suresh Chandra Varshney & Co. v. State of U.P. (Writ Petition No. 15342 of 2000 decided on 30.3.2000) and Siddartha Kumar v. Upper Civil Judge, Ghazipur MANU/UP/ 0129/ 1998.
13. It is consistent view of Hon'ble Supreme Court that the Advocate cannot go on strike and it is illegal. No latitude can be given in this regard. It is interse matter between the parties and their counsel to file counter affidavit and no blame can be put on the Court that it has proceeded with the case in absence of the counter-affidavit.
14. The Court is not inclined to open 'Pandora's Box' for the following reasons-
Firstly: The law is well settled that recall or review application can be filed only by the counsel who had argued the case and not by a subsequent counsel who is engaged after the decision.
Secondly: The recall application in the instant case is in the nature of review application as the judgment has been delivered on merits after hearing the counsels for the parties and the prayer is to recall the judgment and hear on merits again.
Thirdly: When the recall filed by Sri Ranjeet Saxena was listed Sri Brij Lal Verma could not have been authorized by Sri Ranjeet Saxena to argue the application and the case on merits, the following reasons.
(a) Sri Ranjeet Saxena is appointed by the Corporation on its panel to argue to argue its cases and Sri B.L. Verma. The U.P. Power Corporation is a Estate within the meaning of Article 12 of the Constitution and the position of a counsel on its panel is Akur standing counsel appointed by the Government,
(b) Along with standing counsels, brief holders are also appointed by the State Government. If the Corporation had not appointed any brief holders the counsel on the panel cannot handover his government brief to any counsel who is not on the panel to argue government brief.
(c) In any event it was the duty of Sri Ranjeet Saxena to have been present to argue the recall application filed by him in order to avoid excuse again by the Corporation that case was argued by Sri B.L. Verma who is not on its panel and not by Sri Ranjeet Saxena who is on the panel of thue Corporation.
(d) It is very easy to allege by a subsequent counsel that information to his client was not given. If that be the case the recall application ought to have been filed through Sri R.D. Khare. Consequently the case after the judgment has been allotted to Sri Ranjeet Saxena by the Corporation to get recall of order and judgment dated 31.1.2006.
6. Sri Abhinav Bhattacharya, learned counsel for the respondent submitted that this application is nothing, but to delay the compliance of the judgment for which the applicant is liable to be awarded exemplary cost.
7. I have considered the submission advanced by learned counsel for the parties and perused the relevant material as well as law report relied upon by learned counsel for the respondent.
8. On perusal of the Vakalatnama filed by the subsequently engaged counsel Sri Syed Waqar Husain, Advocate, it is evident that it does not contain the No Objection Certificate of the earlier counsel.
9. After hearing the parties, this Court passed the following order on 17.7.2019 :-
"1. Heard learned counsel for the parties.
2. This writ petition has been filed for setting aside the judgment and order dated 13.7.2016 passed by Additional District Judge/ Special Judge (P.C. ) Lucknow in Rent Appeal No.6500055/2012 and order dated 18.9.2012 passed by the Prescribed Authority/ 2nd Additional Judge, Small Causes Court, Room No.19 Lucknow in P.A. Case No.62/1998.
3. During the course of arguments, learned counsel for the petitioner gave an undertaking that the petitioner is ready to vacate the premise in question within a time period fixed by this Court.
4. Learned counsel for the respondents has no objection to the undertaking of learned counsel for the petitioner.
5. In view of the above, this writ petition is finally disposed of without interfering with the judgments of the courts below imposing the following conditions:-
(i) The petitioner will handover the possession of the premises in question, which is in his occupation to the respondents within 1 year from today.
(ii) The petitioner will pay and clear of all the dues of the premises in question before handing over the possession of the premise in question.
(iii) The petitioner will pay the arrears of rent and will also pay rent of the of the premises in question every month as and when the same fall due to landlord and will clear all the arrears before handing over the possession of the premise in question to the landlord.
(iv) In case, the petitioner fails to handover the vacant and peaceful possession of the premise to the landlord within the time-limit prescribed hereinabove, the respondents would be at liberty to pursue the execution case filed by her for execution of the impugned decree and get the decree enforced by taking appropriate proceedings in accordance with law.
(v) In case, in spite of undertaking given before the Court, the petitioner fails to adhere to the undertaking and vacate and handover the premises in question to the respondent, it will amount to committing contempt of this Court."
4. On perusal of aforesaid judgments, it is evident that the review/ recall/ modification application by a subsequent counsel is not maintainable.
5. Accordingly, the application is rejected.
Order Date :- 12.8.2021 Adarsh K Singh