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2002 DIGILAW 121 (JK)

Iftikhar Hussain v. State Of J. &K.

2002-05-01

B.L.BHAT, NISAR AHMAD KAKRU

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1. An ad-interim direction came to be passed by the Writ Court on 10-09-2001 directing the parties to maintain status quo on the spot as it existed then leaving the aggrieved party free to seek amendment/alteration. The respondents 5 & 6 before the Writ Court (applicants herein) have challenged the judgment by medium of this LPA. Their case is that the direction was not extended on the next date because of non appearance of the counsel for the petitioner and on subsequent dates also it was not extended for one or the other reason. Matter came up for consideration on 02-03-2002 before the Writ Court when on Mr. Ghulam Jeelani Advocate appeared for the petitioner. After having heard him the court restrained the respondents from raising construction on the spot with further directing to maintain status quo till further orders. Contention of Mr. Qayoom is that since the direction was not extended on earlier occasions, therefore, the Court could not have passed the direction on 02-03 -2002. The argument is not well founded because operation of the earlier direction was not restricted up to any particular date, yet let us assume it so what when. There is no prohibition in law which would prevent the Writ Court from passing interim directions ancillary to the main relief so as to do substantial justice between the parties notwithstanding the fact that the direction granted at the very inception was not extended on subsequent date/dates. The contention being unsustainable in law fails. 2. Coming to the dispute raised by Mr. Qayoom about appearance of Mr. Ghulam Jeelani on the ground that there is no Advocate of such name who represented the petitioners, suffice it to say that presumption of correctness is attached to the order of the Court. Nonetheless, record of the Writ Court was sent for. On its perusal we find that respondents have filed two vakalatnamas one given to Mr. A.R. Bhat and another to Mr. Ghulam Jeelani which form part of the writ record. This being the factual position the contention of Mr. Qayoom is belied by the record. Obviously, there appears an endeavour to attribute default to the court. On its perusal we find that respondents have filed two vakalatnamas one given to Mr. A.R. Bhat and another to Mr. Ghulam Jeelani which form part of the writ record. This being the factual position the contention of Mr. Qayoom is belied by the record. Obviously, there appears an endeavour to attribute default to the court. This is an act for which an Advocate is answerable, however, to say the least instead of stretching the matter we take an exception to the contention and hope that such argument is not pressed for consideration in future so that high professional standards of ethics and mortality and Advocate is expected to adhere to are maintained. 3. Mr. Qayoom also contended that even if it is assumed that there is an Advocate by the name of Mr. Ghulam Jeelani yet he could not have appeared, for, the lawyers had abstained from work because of strike call on 02-03-2002 that is the date when order under challenge was passed. We would like to examine this argument in the light of the judgment of the apex court in Ramon Services Pvt. Ltd. Vs. Subhash Kapoor (AIR 2001 SC 207) para 27 may be extracted: 27. In the light of the consistent views of the judiciary regarding the strike by the advocates, no leniency can be shown to the defaulting party and if the circumstances warrant to put such party back in the position as it existed before the strike. In that event, the adversary is entitled to be paid exemplary costs. The litigant suffering costs has a right to be compensated by his defaulting counsel for the costs paid. In appropriate cases the Court itself can pass effective orders, for dispensation of justice with the object of inspiring confidence of the common man in the effectiveness of judicial system.� 4. The mandate of the judgment leaves no scope to accommodate a striking lawyer thus an Advocate who appears despite call for strike cannot be refused hearing by the Court. The argument of Mr. Qayoom amounts to a suggestion to desist from appearance when there is a call for strike. It is an amazing argument. Functioning of the Court has to be ensured uninfluenced by a call for strike. The Courts are bound to discharge their duties without fear and no effort of browbeating should deter the Courts from discharging their judicial functions. Qayoom amounts to a suggestion to desist from appearance when there is a call for strike. It is an amazing argument. Functioning of the Court has to be ensured uninfluenced by a call for strike. The Courts are bound to discharge their duties without fear and no effort of browbeating should deter the Courts from discharging their judicial functions. The contention being untenable in law is turned down. 5. It was further argued by Mr. Qayoom that the petitioners have filed an application seeking vacation of the interim order which has not been considered by the Court while passing the direction. To appreciate the argument order dated: 18-10-2001 passed by the writ Court assumes significance. Its perusal reveals that the application stands disposed of by treating it as objections to the CMP filed by the petitioners that too at the instance of the appellants counsel. Obviously, the argument advanced is devoid of reason and logic. However, we would like to place it on record that even if the application for seeking vacation of order would have been alive no law precludes the Court to grant the interim relief if the facts and circumstances of the case call for it and pendency of application for vacation of order cannot come in the way of the Court. We may hasten to add that by observing so we do not mean to say the Court has to deny the right of hearing to the aggrieved person who seeks its vacation but what we want to actually observed is that if such aggrieved person opts for non appearance, Court is within its powers to deal with the matter according to law inspite of such non appearance. 6. No other ground was urged. However, Mr. Bhat appearing counsel for the respondents has made an attempt to take us through the facts of the case to contend that respondents have a strong prima facie case. Since the learned counsel for the appellants has touched no ground other than those aforementioned, we choose not to express any opinion on the merits of the case. Moreso, the writ Courts direction is to continue till further orders which keep the matter open for consideration/reconsideration and the parties are within their rights to urge whatever they may have in their armoury to support their respective contentions.7. In the aforementioned backdrop we decline to interfere with the order. LPA is dismissed. Moreso, the writ Courts direction is to continue till further orders which keep the matter open for consideration/reconsideration and the parties are within their rights to urge whatever they may have in their armoury to support their respective contentions.7. In the aforementioned backdrop we decline to interfere with the order. LPA is dismissed. Registry to list the writ petition before the learned Single Judge in due course.