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Allahabad High Court · body

1993 DIGILAW 613 (ALL)

Habib v. State of U. P.

1993-10-15

A.B.SRIVASTAVA, G.MALAVIYA

body1993
Judgment : 1. BY this application dated 20-9-1993 a prayer has been made to withdraw the order dated 13-9-1990 and to fix some other date (for hearing) after 30-10-1993, 2. TO appreciate the point involved in deciding this application it will be necessary to mention a few facts. On 9-7-1993 the following order was passed by us in this appeal. "Sri G. S. Chaturvedi and Ms. P. L. Shahni stated that they have no instructions in this case and to the best to their knowledge Sri Jagdish Singh Sengar has to argue this appeal. As the cases of Sri Sengar are adjourned up to 30-8-1993, list this case on 31-8-1993. Thereafter on 31-8-1993 this case was listed before us. The following order was passed on that day. "The cases of Sri Jagdish Singh Sengar are reported to be adjourned till today. List on 13-9-1993." When the case was listed on 13-9- 1993 the following order was passed. "On 9-7- 1993 this case was directed to be listed on 31-8-1993 again this case was; directed to be listed today. That is how the case is on the list. The list has been revised. Still no one is appearing on behalf of the appellants. It is obvious that the appellants do not seem to be interested in prosecuting this appeal, more so. as an order to release them has been passed by the High Court on 25-4- 1979 Under the circumstances we have no option but to direct that the bail granted to the appellants vide order dated 25-4-1979 is cancelled. The CJ.M. Etah is directed to get the appellants arrested immediately and report the Court about the compliance of this order. This appeal shall be listed as soon as the report of G.J.M, mentioned above is received " After the order dated 13-9-1993 the present application has been moved. On this application we passed the following order :- "List this application for order on 7-10-1993. Meanwhile the office; shall publish a notice in the cause list that any counsel who may wish may move submission on the point that if during the adjournment of the cases of a counsel by Hon. The Chief Justice, if that case is listed before any bench, can the Bench fix any date for hearing in the said case or not after the period of adjournment. Apart from the notice published in the Cause List learned Advocate General and the Secretary, Bar Association shall also be informed of the order and the learned Advocate General is requested to address this Court on the above mentioned point on that day. Up to 31-10-1993 the operation off the order dated 13-9-1993 shall not be given effect to." On 7-10-1993 Sri Jagdish Singh Sengar, learned counsel for the appellant informed, the Court that he had been asked by a few of his friends to get the "hearing on this application postponed till 11-10-1993. Acceding to that request the application was posted for hearing on 11-10-1993. Sri J. S. Sengar learned counsel for the appellant and Sri Shambhu Chopra and also Sri Jagdish Tiwari learned counsel for the State alone have addressed the Court on this application After hearing the learned counsels mentioned above we have carefully considered the aspect involved in this case. 3. THE question involved in this application is that during that period when the cases of the learned counsel are adjourned by Hon. THE Chief Justice, if any case is listed before the Court, whether the Court has jurisdiction to fix a date in the said case after the period of adjournment is over on not. 4. SRI J. S. Sengar learned counsel for the appellant has contended that if the case of a counsel had been adjourned by the order of the Hon. Chief Justice then the case could not be listed before the Court at all. His further contention is that if by mistake the case is shown on the cause list before any particular court, all that the Court can do is to make a note that the case could not be brought on the List during the (sic) adjourned by the Hon. Chief Justice, In other words his contention is that on the date of such listing the court has no jurisdiction to fix any date in the case even after the period of adjournment of the cases of the learned counsel is over. In support of his contention Sri J. S Sengar has placed reliance on following provision' of the Rules of Court :-Chapter V Rule 1 :- Constitution of Benches:-Judges shall sit alone or in such Division Courts as may be constituted from time to time and do such work as may be allotted to them by order of the Chief Justice or in accordance with his directions." Thereafter Sri Sengar referred to Rule 2 of Chapter V .-Which says that except as provided by these Rules or other law, the cases mentioned thereafter should be heard and disposed of by a Judge sitting alone. On the strength of these Rules, Sri Sengar states that allocation of work is a statutory function of Hon The Chief Justice, in as much as, these rules, which are framed by the High Court in exercising of powers conferred by the Article 225 of the Constitution have a binding effect on all the Courts. We hardly dispute the proposition put forth by the learned counsel. 5. THEREAFTER Sri Sengar has relied upon the Chapter VI Rules 5 and 6. These Rules states as follows :- Rule 5 : List of ready cases :-Subject to the directions of the Chid Justice, the Registrar shall cause to be published from time to time a list of all cases ready and likely to put up for hearing" Rule 6 : Cause List :-The Registrar shall, subject to such directions a: the Chief Justice may give from time to time, cause to be prepared a Cause List for each day on which the Court sits containing lists of cases which may be heard by the different Benches of the Court. The list shall also state the hour at which and the room in which each bench shall sit." The emphasis of Sri Sengar is on Rule 6. His contention is that one the cases of the counsel are adjourned by the Chief Justice, the Registrar ha: no authority to publish the cause list containing in the list such cases of the learned counsel which had been adjourned by the Chief Justice. According to him such listing is illegal and improper and even if the case is shown on the list it should be deemed that the case is not listed before the Court. 6. According to him such listing is illegal and improper and even if the case is shown on the list it should be deemed that the case is not listed before the Court. 6. WE had put a specific question to Sri Sengar whether in the event of such a case being listed should no order be passed on the order sheet of that case or whether an order of adjourning the case can be passed as was done in the instant case on 31-8-1993. Sri Sengar has asserted that whereas the first line of the order dated 31-8-1993 viz. "The cases of Sri J. S. Sengar are reported to be adjourned till today" could be passed, according to him, the next line of the order "List on 31-9-1993" could not be passed by the Court. In our opinion once Sri Sengar states that some order can be passed by a Bench on the order sheet of such a case, which otherwise stands adjourned by the Chief justice, then his contention that the cases should be taken to be not listed before the Bench looses all its force. We do not find any justification holding that the Bench can pass one order on the order sheet but is precluded to pass any other order in the said case, even if that order is otherwise not detrimental to the counsel: meaning thereby that when there is no order that the case be listed within the period of adjournment. It may be noted here that an order putting of the case during the period of adjournment, is suggested to be valid as in the absence of such an order the case would come up on the list time and again which will involve the clerk, of the counsel to inform the Bench Secretary of the Court on all those dates that the cases of his counsel are adjourned and therefore the court should not decide the case exparte in absence of the counsel under a mistaken belief that he has not appeared in the case deliberately. We fail to understand that if for the convenience of the learned counsel whose cases are adjourned, the counsel expects that an order is to be passed on the order sheet even during the period of adjournment, why can not the Court simultaneously fix a date in the said case after the period of the adjournment of his cases is over. We also fail to appreciate the argument of learned counsel for the appellant that such an order passed by the Court fixing a date after the period of adjournment is detrimental to the counsel whose cases are adjourned. The only possible objection which can be raised is that if the Court fixes a date in these circumstances, the date is not fixed according to the convenience of the learned counsel and it may be that learned counsel has got his other cases fixed for such a date from before, or that on the date so fixed learned counsel may have some such personal work which may altogether make it impossible for him to come to the Court and argue that matter. We appreciate the fact that when a date is fixed in this manner, there is a possibility that the date may not suit the counsel. However, in that event all that is needed is that on the said date been fixed in the case an application may be moved at the instance of the counsel indicating that for, reasons disclosed therein he would like the case to be adjourned for some other date suggested by him in his application. On such application being moved the Court would have no problem to adjourn the hearing of the case to another date. Therefore merely because a Court fixes a date for hearing, after a period of adjournment it cannot be said that the order so passed is detrimental to the interest of learned counsel. It is a common practice in the High Court to fix a date in a fresh matter exparte by issuing notice to the Opposite Party. It is equally possible that on the date so fixed the counsel who has been engaged by the Opposite Party cannot for good reason attend the Court. It is a common practice in the High Court to fix a date in a fresh matter exparte by issuing notice to the Opposite Party. It is equally possible that on the date so fixed the counsel who has been engaged by the Opposite Party cannot for good reason attend the Court. In such situation, the counsel have always got another date fixed It has never been suggested that the practice of fixing the date in a fresh matter has resulted into the miscarriage of justice to the Opposite Party or is to the detriment of the counsel appearing for the said party. On the parity of reasoning a date fixed after the period of adjournment even during the absence of learned counsel for the party cannot seriously prejudice the party or his counsel. Moreover it is always expected that the clerk of learned counsel who informs the Bench Secretary that the cases of his counsel are adjourned, should be present in the court and may inform the Bench Secretary as to which date fixed after the period of adjournment would suit his counsel. Therefore, we are not impressed with the argument of Sri Sengar that where as part of the order adjourning the case can be passed by a Bench in such cases another part of the order fixing a date for hearing in the said case beyond a period of adjournment can not be passed. 7. WE had also put a practical problem which can arise in a case a if the contention of Sri Sengar is accepted to the effect that once cases of party are adjourned then no Court can fix a date for hearing in the said cases. WE pointed out to Sri Sengar that in a given cases some persons may apply for bail and Court after hearing the bail application may grant the adjournment for a week or ten days with a direction to list the bail matter thereafter. WE pointed out to Sri Sengar that in a given cases some persons may apply for bail and Court after hearing the bail application may grant the adjournment for a week or ten days with a direction to list the bail matter thereafter. If in between some persons puts an appearance in the said bail matter by filing his power on behalf of the informant or the victim to oppose the bail application and simultaneously gets an order from Hon. The Chief Justice to have his cases adjourned for a period of a month or so, then not only that the bail application would not be heard for the whole of the month but even a date could not be fixed -in the bail application after the expiry of the period of adjournment of the counsel who is opposing the bail application. If that counsel thereafter chooses to defeat the hearing of the bail application then he can not get his cases adjourned time and again to prevent the bail matter to come up for hearing at any time till the counsel chooses to get his cases adjourned. Similarly there may be cases on the civil side where after getting a stay order the counsel for the applicant, petitioner or appellant, as the case may be, gets his cases adjourned. Thereafter despite of the: efforts by the Opposite Party who can impress upon the Court that the said orders have been obtained by misrepresenting the facts or law, he cannot get the said order vacated, as according to Sri J. S. Sengar the Court has no jurisdiction to fix any date for getting the said matter fixed for hearing during the period of adjournment. It will not be out of place to mention here that we have verified from the office and have been informed that Sri Sengar has himself got his cases adjourned repeatedly for the last many months. If similarly in the cases as have been mentioned above one of the counsels gets his cases adjourned repeatedly then either the hail matter or the application to vacate the stay order would not be heard for years altogether. If similarly in the cases as have been mentioned above one of the counsels gets his cases adjourned repeatedly then either the hail matter or the application to vacate the stay order would not be heard for years altogether. Sri Sengar contended that in such an eventuality the Court would entitled to ignore the order of adjournment passed by Hon. The Chief Justice at the said order tantamount to effect the Fundamental Rights of a party to get his matter heard. Sri Sengar has argued that an improper adjournment, in which the Chief Justice had adjourned the hearing of the ease without hearing the counsel for the other side, amounts to denial of the principles of natural justice of the said party. His contention is that in all such cases the Hon. Chief Justice may grant adjournment only after affording an opportunity to the other party so that the right of any such party to get his matter heard is not defeated. This submission of Sri Sengar needs only a mention to be rejected as it is not possible for Hon. The Chief Justice to hear all the counsel whose cases are likely to be affected if counsel for one of the parties seeks an adjournment of his cases. 8. SRI Sengar had also tried to impress; upon us that in every case where the fundamental rights of any of the party was affected on account of the adjournment of the cases of counsel for the Opposite Party, such adjournment could be ignored by Courts of law, as, such an adjournment could not fall in the Category of the order which can be termed to be just, reasonable and fair as per Maneka Gandhi's case. The proposition of SRI Sengar is too wide and impractical which can be hardly be given effect to. Sri Shambhoo Chopra, Advocate who also intervened in pursuance to our order (only published in the Cause list) dated 30-9-1993 passed on the back of the present application inviting such Hon. Members of the Bar who may wish to make their statement in this regard, argued that it Is always possible for the Court to fix a date beyond the period of adjournment granted by the Chief Justice. His contention is that such fixing of date should be only in exceptional circumstances and should not be done as a rule. His contention is that such fixing of date should be only in exceptional circumstances and should not be done as a rule. His further contention Is that normally an order by Hon. The Chief Justice should be honoured and no specific orders should be passed on the cases of a lawyer whose cases are adjourned as that, may be treated as an interference by a Court to the Chief Justice order. However, if the excigency of the situation demand that the date must be fixed in cases, the Court should pass that order subject to certain restraint. These restraints according to him are :- 1. The date to be fixed after adjournment - should be dependent upon the nature of the case as also issues involved therein. (2) The fixation of date should be necessiated dependent upon line motive of the lawyer seeking an adjournment, meaning thereby, that if the application for adjournment is made by a lawyer without adequate ground then only the date may be fixed to enable the case to be taken up by the Court concerned and (3) care should be taken that the date fixed beyond the period of adjournment should not prejudice the interest of the lawyer of the case itself. 9. WE have no hesitation to say that the suggestion made by Sri Chopra are absolutely correct and are worthy of acceptance. 10. SRI Jagdish Tiwari, learned counsel for the State contended that if an adjournment which has been granted by Hon. Chief Justice is not in keeping with the rules, the adjournment granted to that extent should be treated to be ineffective In this connection. He has invited our attention to Rule 15 (2) of Chapter VI of the Rules of Court which reads as follows :- An application under this Rule shall be accompanied by a list of cases desired to be postponed specifying the occasion or occasions, if any when any such case was previously postponed under this Rule. It shall also indicate the cases in which the date of hearing has been fixed by a Bench. It shall also indicate the cases in which the date of hearing has been fixed by a Bench. If any omission or inaccuracy in this regard is discovered in the application later, (or if any Advocate whose such application has been allowed is bound to have appeared before any of the Benches of the Court or before any other Court or Tribunal except where the postponement has been ordered specifically on ground of appearance before any particular Court or Tribunal, in any case, whether for orders, admission or hearing, the. application for postponement of cases shall stand rejected automatically). (underlined by us) The contention of Sri Jagdish Tiwari Is that this sub Rule provides that if during the adjournment granted by the Hon. The Chief Justice, the Advocate whose adjournment application is allowed is found to have appeared any of the Benches of the High Court or before any other Court or Tribunal, except where the postponement has been ordered specifically on ground of appearance before any particular Court or Tribunal 'in any case' whether for orders, admission or hearing, the applications for postponement of cases shall stand rejected. (Underlined by us) 11. THE words 'in any case' clearly indicates that only in such an eventuality when the adjournment has been granted by Hon'ble THE Chief Justice on the ground that a counsel has to argue a particular case in a Court which is likely to take a long time for its preparation and argument, then barring his appearance in the Court in that particular case or cases, if the counsel appears in any other matter in any Court his adjournment should be treated as cancelled In this connection Sri Jagdish Tiwari has brought to our notice a copy of the order dated 8-2-1980 passed by Hon. THE then Chief Justice specifying the conditions on which adjournment applications are allowed. It would be useful to quote the said order Adjournment applications of the learned Advocates are granted by me subject to the following conditions :- 1. No counsel whose cases are adjourned is permitted to file fresh cases. 2. A Part-heard or specially fixed case is not adjourned. 3. No adjournment is granted with regard to cases in which there are more than one counsel. 4. Cases which are already on the list are not adjourned. 5. No counsel whose cases are adjourned is permitted to file fresh cases. 2. A Part-heard or specially fixed case is not adjourned. 3. No adjournment is granted with regard to cases in which there are more than one counsel. 4. Cases which are already on the list are not adjourned. 5. Cases which are not mentioned in the list supplied by the counsel along with his adjournment application are not adjourned. 6. No adjournment is granted in regard to miscellaneous matters listed in various courts. Circulated for information and necessary action to all the Hon'ble Judges. Sd/- Satish Chandra, Chief Justice. 12. THE reading of sub Rule 2 of Rule 15 of Chapter VI coupled with the order dated 8-2-1980 make it clear that if the Chief Justice has granted a conditional adjournment in relation to the cases of the learned counsel on his application specifying the reasons why the adjournment was sought then in the event of the said counsel appearing to argue in the case in the Court, the adjournment so granted would stand rejected automatically. We are fortified in our view by another order passed by Hon'ble THE Chief Justice whereby this fact has been clarified and it has need made clear that appearance by any learned counsel in any case shall automatically result in his adjournment application being rejected. Sri Jagdish Tiwari learned counsel for the State has argued that since Sri Sengar has himself asserted that he comes to the High Court only to argue Miscellaneous and fresh matters therefore it should be held that on account- of his appearance in some cases his application for postponement of cases stood automatically rejected and there was absolutely no restriction on the Court in; fixing a date in the case of Sri Sengar even during the period for which the adjournment had been granted by Hon. THE Chief Justice. Coming to the instant case we find that we had fixed a date for hearing of this appeal after this case had been adjourned on a number of occasions. Speedy disposal of cases is also one off the Fundamental functions of this Court and could in turn be termed as fundamental right of a litigant to get speedy justice. Fixing of a date in the appeal in the circumstances mentioned here-in-before cannot be treated to be bad in any manner what-so- even. Speedy disposal of cases is also one off the Fundamental functions of this Court and could in turn be termed as fundamental right of a litigant to get speedy justice. Fixing of a date in the appeal in the circumstances mentioned here-in-before cannot be treated to be bad in any manner what-so- even. It will also be relevant at this stage to quote a passage from the judgment of this Court in the case of Paras Nath Tiwari v. Bhaiya Lal, 1970 ALJ 328 a Division Bench of this Court while dealing with the question whether the date fixed by a Court while entertaining the petition was valid or not, observed as follows : "We are of the opinion that the regulation of the sittings of the Judges of the Court is not a judicial function that the Chief Justice performs. It is only an administrative powers discharged to facilitate the performance of the judicial functions of the Court by the various Judges who constitute it. Once the case is before a Bench, it has full jurisdiction to decide it and is not only fully seized of it but has complete dominion over id to fix dates and decide it in accordance with its views and the law on the subject. The administrative power of the Chief Justice do not destroy this inherent jurisdiction possessed by the Bench receiving a case and must be read subject to it." Although the above mentioned observations; were made in context of a different situation the fact remains that the judicial power of the Court was held in the said case to be not affected by the order passed by Hon'ble Chief Justice on the administrative side. 13. WE accordingly hold that when this Bench had fixed a date for hearing of this appeal during the period of adjournment, that order was passed in accordance with law. 14. ON the application dated 29-9-1993 we have already said that up to 31-10-1993 the operation of the order dated 13-9-1993 shall not be given effect to. 13. WE accordingly hold that when this Bench had fixed a date for hearing of this appeal during the period of adjournment, that order was passed in accordance with law. 14. ON the application dated 29-9-1993 we have already said that up to 31-10-1993 the operation of the order dated 13-9-1993 shall not be given effect to. Sri Sengar has stated that it was not an account of any lapse on the part of the appellant that no person had appeared before this Court on 30-9-1993, and his non appearance was under the bonafide belief that he need not have appeared to argue this appeal during the period of adjournment of his cases hence the appellants should not be penalised on that score. In view of the facts placed before us the contention of Sri Sengar appears to be correct. Consequently the order dated 13-9-1993 directing the bail granted to the appellant to be cancelled and asking the C.J.M. Etah to get the appellants arrested is recalled. On 11-10-1993 we had directed this case to be listed for order on 15-10-1993. Accordingly we direct this appeal to be listed for hearing on 3-11-1993.