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2014 DIGILAW 836 (ALL)

REKHA v. CIVIL JUDGE (J. D. ), KOL, ALIGARH

2014-03-11

PANKAJ MITHAL

body2014
JUDGMENT Hon’ble Pankaj Mithal, J.—Heard Sri Islam Ahamad, learned counsel for the petitioner. 2. Petitioner has filed this petition for the quashing of the order dated 12.2.2014 passed by the Civil Judge, Junior Division, Kol, Aligarh in original suit No. 430 of 2011 by which the Court below has refused to extend the interim injunction and for a direction to extend the injunction order dated 2.8.2011 as the same was expiring on 12.2.2014. 3. The petitioner had instituted a suit for permanent injunction. On 2.8.2011 she was granted ex parte interim injunction till the next date fixed and notices were directed to be issued to the other side. The said ex parte injunction was extended from time to time and was to expire on 12.2.2014. On the said date, counsel for the petitioner appeared and moved application for the extension of the stay order but as the counsel for the other side was not present on account of the lawyers strike, the Court below in view of the order of the Administrative Judge dated 20.12.2013 refused to extend the stay order and fixed 3.3.2014 as the next date. 4. Learned counsel for the petitioner submits that when the petitioner’s counsel had appeared there was no justification on part of the Court below to have refused to extend the injunction order in the absence of any changed circumstances. The administrative order could not have affected the judicial discretion of the Court. 5. In the supplementary-affidavit counsel for the petitioner has stated that in the Court below Sri Nand Kishore was appearing as counsel on behalf of the petitioner. He was personally present on the date fixed for getting the injunction order extended. The said counsel despite strike had appeared in all his three cases which were fixed on the said date. He was resisting the strike. The particulars of all the three cases in which his counsel was appearing and the order sheet showing that he had actually appeared in all the cases has been filed with the supplementary-affidavit. 6. In view of the aforesaid facts and circumstances, it is clear that the counsel of the petitioner was not on strike on 12.2.2014 rather he was resisting the same. 6. In view of the aforesaid facts and circumstances, it is clear that the counsel of the petitioner was not on strike on 12.2.2014 rather he was resisting the same. He had appeared not only in the above case for getting the interim order extended but in all his other cases even then he and his client has been penalized by not extending the injunction order. 7. The impugned order clearly recites that the counsel for the petitioner had appeared and moved application for the extension of the interim order which was expiring but as the lawyers were on strike the interim order is not to be extended in view of the directions of the Administrative Judge. 8. The order of the Administrative Judge directs all the Courts below that when the advocates are on strike, no application for temporary injunction or extending the stay order expiring on the said date be entertained and not to extend the interim injunction or the stay order expiring on the said date. 9. It is a sorry state of affairs that a person who resists the strike or appears in Court despite call of the lawyers to strike work has been made to suffer because of the administrative order issued to curb the menace of strike. 10. The directions of the Administrative Judge contained in paragraph 2 of the administrative order dated 20.12.2013 which has been quoted by the Court below in its order reads as under : “In future on a date, when Advocates are on strike, neither any bail application nor any temporary injunction or stay application in a civil matter shall be entertained nor any temporary injunction or stay order expiring on the said date shall be extended under any circumstances.” 11. The aforesaid administrative order has been issued by the Administrative Judge in the larger interest to maintain the sanctity of the justice delivery system in order to curb the menace of strike by lawyers as the Supreme Court has time and again repeated that strike of lawyers are illegal and effective steps should be taken to stop the tendency of lawyers going on strikes. The aforesaid administrative order is a wise step in this direction but one has to ensure that it may not be counter productive or may prove to be contrary to the object with which it has been issued or renders itself as an obstacle to the course of justice. 12. It is undoubtedly the function of the High Court to keep all subordinate Courts within the bounds of their authority and to correct irregularities in their proceedings in exercise of their supervisory and administrative powers by issuing general directions to regulate the exercise of discretionary powers of the Courts below. However, a superior Court ought not to issue a direction to a subordinate Court on administrative side laying down the manner of exercise of discretion conferred on it by law. 13. The legislature having conferred power and having reposed confidence and trust in any Court to adjudicate the lis should be allowed to exercise its discretion without any dictation from anyone not even by any superior Court. It is for this reason Courts exercising adjudicatory functions should be left free to act independently, impartially and to their best of judgment unfettered by any direction which tends to interfere in discharge of their judicial functioning. The Courts at all levels should be free to exercise their judicial powers within the limits placed by law and the rules and not by the administrative directions. Any administrative direction which interferes in the discretion of a Court or which adversely affects rights of an individual or results in injustice may be in any specific case has to be held to be invalid and violative of Article 14 of the Constitution of India. 14. A plain reading of the impugned order reflects that it has been passed by the Court below solely on the basis of an administrative order of the Administrative Judge. The Court below was totally under influence by the said administrative order and had not cared to apply its independent mind to the facts and circumstances of the case. It has blindly followed the administrative directions adversely affecting the right of a litigant. 15. The reading of the order of the Court below makes it abundantly clear that it is virtually an order of the Administrative Judge rather than of the Court that is seized with the lis between the parties. It has blindly followed the administrative directions adversely affecting the right of a litigant. 15. The reading of the order of the Court below makes it abundantly clear that it is virtually an order of the Administrative Judge rather than of the Court that is seized with the lis between the parties. The administrative order as such has ex facie intervened in the judicial working of the subordinate Court. The said order cannot be said to be an independent order of the Court below. It is an order passed on the dictation of the Administrative Judge which is antithesis to the independence of justice. 16. In view of the aforesaid facts and circumstances, the order impugned dated 12.2.2004 cannot have the approval of law and is accordingly quashed and the writ petition is allowed with the direction to the Court below to proceed and decide the interim injunction application of the petitioner pending in the suit in accordance with law as expeditiously as possible preferably within three months from the date of submission of the certified copy of this order and till the consideration and decision of the said application by the Court below, the injunction order passed on 2.8.2011 shall continue to remain in operation. 17. The writ petition is allowed as above. —————