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2003 DIGILAW 390 (MAD)

K. Saroja v. Sankaraswamy

2003-03-11

D.MURUGESAN, S.JAGADEESAN

body2003
Judgment :- S.JAGADEESAN, J. The appeal is directed against the order of the learned First Additional Subordinate Judge, Nagercoil, dismissing the application filed by the appellant under Order 9 Rule 9 of the Civil Procedure Code. 2. The appellant filed the suit in O.S.No.230 of 1998 for recovery of a sum of Rs.6,35,000/- together with 12% interest per annum. The said suit was listed on 16.9.2002 for trial. Since the appellant as well as her counsel failed to appear, the suit was dismissed for default. The appellant filed an application in I.A.No.689 of 2002 for restoration of the suit. The same was dismissed by the lower Court on the ground that the reason given by the appellant for the absence of her counsel cannot be accepted as a sufficient cause for setting aside the order of dismissal of the suit. The reason for the absence of her counsel being boycott of the Court by the lawyers. 3. Before us, the learned counsel for appellant contended that the counsel for the appellant did not appear on the date of hearing due to the lawyers' call to boycott the Courts. On that ground, the appellant cannot be made to suffer by the dismissal of the suit. In fact the loss sustained by the appellant because of the dismissal of the suit cannot be compensated by any other means except the restoration of the suit. The counsel's absence due to the boycott of the Court even though may not be a sufficient cause for the restoration of the suit, still, some terms can be imposed for the restoration of the suit so that the appellant can have the benefit of the trial. 4. We carefully considered the above contention of the learned counsel for appellant. It is for us to consider as to whether the suit can be restored by accepting the reason given by the appellant for the absence of her counsel. In paragraph 3 of the affidavit filed by the appellant in support of the application for restoration of the suit, it is clearly stated as follows, "Due to Advocates' boycott my Advocate was also unable to attend the Court on the posting date." Hence, there is no dispute that the suit was allowed to be dismissed for default by her counsel by abstaining himself from appearing in the Court due to boycott by the lawyers. The reason for the boycott is not known. The lower Court disbelieved the version of the appellant that she was unable to be present in Court due to viral fever. We need not much dwell on the absence of the appellant because, if the counsel for the appellant had appeared before the lower Court on the hearing date and sought an adjournment, definitely the Court below would have granted the same. Hence, it is for us to consider whether there is sufficient cause for the counsel for the appellant to abstain from attending the Court under the guise of boycott. 5. The lower Court is situated at Nagercoil in Kanyakumari District. Instances are not rare as to the boycott of Courts in this District as evident from the past. Most of the lawyers' of this District are highly prone for the boycott of Courts and for them there need not be even any rhyme or reason to boycott the Courts. In fact no subordinate Judicial Officer is willing to work in this district. Among them it is understood that the posting in this district is a punishment. When such is the conduct of the members of the bar, we are of the view that the same has to be taken serious note of while dealing with the matters like this. Whether the boycott of the Court by the Advocates can be justified at all? The answer is the recent pronouncement by the Five Judges Bench of the Supreme Court in the judgment in "EX-CAPT. HARISH UPPAL v. UNION OF INDIA AND ANOTHER (2003 AIR SCW 43)", wherein it has been held that the lawyers have no right to go on strike or give a call for boycott in the following terms:- "In conclusion it is held that lawyers have no right to go on strike or give a call for boycott, not even on a token strike. The protest, if any is required, can only be by giving press statements. TV interviews carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay facts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. TV interviews carrying out of Court premises banners and/or placards, wearing black or white or any colour arm bands, peaceful protest marches outside and away from Court premises, going on dharnas or relay facts etc. It is held that lawyers holding Vakalats on behalf of their clients cannot not attend Courts in pursuance to a call for strike or boycott. All lawyers must bodily refuse to abide by any call for strike or boycott. No lawyer can be visited with any adverse consequences by the Association or the Council and no threat or coercion of any nature including that of expulsion can be held out. It is held that no Bar Council or Bar Association can permit calling of a meeting for purposes of considering a call for strike or boycott and requisition, if any, for such meeting must be ignored. It is held that only in the rarest of rare cases where the dignity, integrity and independence of the Bar and/or the Bench are at stake, Courts may ignore (turn a blind eye) to a protest abstention from work for not more than one day. It is being clarified that it will be for the Court to decide whether or not the issue involves dignity or integrity or independence of the Bar and/or the Bench. Therefore in such cases the President of the Bar must first consult the Chief Justice or the District Judge before Advocate decide to absent themselves from Court. The decision of the Chief Justice or the District Judge would be final and have to be abided by the Bar. It is held that Courts are under no obligation to adjourn matters because lawyers are on strike. On the contrary, it is the duty of all Courts to go on with matters on their boards even in the absence of lawyers. In other words, Courts must not be privy to strikes or calls for boycotts. It is held that if a lawyer, holding a Vakalat of a client, abstains from attending Court due to a strike call, he shall be personally liable to pay costs which shall be addition to damages which he might have to pay his client for loss suffered by him." (emphasis supplied) In fact the said Five Judges Bench approved the earlier view taken in the case of "MAHABIR PRASAD SINGH v. JACKS AVIATION PVT.LTD. ( 1999 (1) SCC 37 )" wherein it has been held that "it is settled law that the strike or boycott by the Advocates is no ground for adjournment." The same view was expressed by the learned Judges of the Supreme Court in the case of "RAMON SERVICES PVT.LTD. v. SUBHASH KAPOOR AND OTHERS ( 2001 (1) SCC 118 ) in the following terms:- "We have no doubt that the legal position adumbrated by the Additional District Judge as well as the High Court cannot be taken exception to. When the advocate who was engaged by a party was on strike there is no obligation on the part of the court either to wait or to adjourn the case on that account. Time and again this Court has said that an advocate has no right to stall the court proceedings on the ground that advocates have decided to strike or to boycott the courts or even boycott any particular court." (emphasis supplied) 6. In "INDIAN COUNCIL OF LEGAL AID AND ADVICE v. BAR COUNCIL OF INDIA reported in ( 1995 (1) SCC 732 )", the Supreme Court observed thus:- "It is generally believed that members of the legal profession have certain social obligations, e.g. to render "pro bono publico" service to the poor and the underprivileged. Since the duty of a lawyer is to assist the Court in the administration of justice, the practice of law has a public utility flavour and, therefore, he must strictly and scrupulously abide by the Code of Conduct behoving the noble profession and must not indulge in any activity which may tend to lower the image of the profession in society. That is why the functions of the Bar Council include the laying down of standards of professional conduct and etiquette which advocates must follow to maintain the dignity and purity of the profession." 7. We do not want to multiply the authorities since the recent judgment of the Supreme Court in Harish Uppal's case (2003 AIR SCW 43) cited supra almost concluded the issue. When the Advocates have no right to boycott and contrary to such obligation to the client did boycott the Court and make the client to suffer the loss, then, undoubtedly it is for the Advocates to compensate the loss sustained by his or her client. When the Advocates have no right to boycott and contrary to such obligation to the client did boycott the Court and make the client to suffer the loss, then, undoubtedly it is for the Advocates to compensate the loss sustained by his or her client. The sympathy on the litigants that they should not be made to suffer because of the mistakes of the counsel seems to be a misplaced one. In fact it gives a strength or emboldens the Advocate to boycott the Court on the hope that the Courts will always take care of the interest of the litigants by imposing some fine or cost which also is being paid only by the litigants and not by the counsel. Even though the direction is issued in some of the matters to the litigants to recover the cost from the counsel, to our knowledge, in no case the litigant has recovered the cost from their counsel. In many of the cases after the suit is restored or the ex parte order being set aside, the same counsel continue the proceedings representing the litigant. When that be the case, there cannot be any doubt that the imposing of cost with liberty to the party to collect the same from his counsel is only a farce. Further, it is not open to the party to give any complaint against his/her counsel for the loss or damage sustained by him/her with the Bar Association or Bar Council concerned. Now-a-days the largest call emanates from the Bar Association or from the Bar Council, especially Bar Council of India. In such circumstances, no useful purpose also would be served by giving a complaint before those forums. Considering all these, we are not inclined to interfere with the order of the Court below. Accordingly, the appeal has no merits and the same is dismissed.