# Mrs. Madhuri Saxena v. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg, Lucknow

- **Citation:** (2020) 10 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-17
- **Case number:** Matters Under Article 227 No. 237 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mrs-madhuri-saxena-v-sahkari-awas-evam-vitt-nigam-ltd-sarojni-marg-lucknow-45146
- **Pages:** 27

## Headnote

Civil Law - Arbitration and Conciliation Act
(26 of 1996)- Section 34(6) - Expeditious
disposal - Application for setting aside
10 All. Mrs. Madhuri Saxena Vs. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg, Lucknow 169
arbitral award - Courts to dispose off
within a period of one year from the date
on which the notice is served upon the
other party - Delay in disposal - in case
application is not decided within the
statutory time limit of one year, court
should make all out endeavours to decide
it
within
a
reasonable
time
frame
proximate thereafter - S. 34(6) directory
in nature, prevent the courts from being
rushed
into
decisions
by
breaching
fundamental norms of fairness and justice
- however, merely because S. 34(6) is
directory it does not permit courts to
extend
the
statutory
time
frame
indefinitely or unreasonably - Justice to be
meaningful has to be delivered in a
relevant time frame - (Para 29, 40, 41)
Arbitration case filed in the year 2017 against
the arbitral award - No effective hearing on any
dates - matter remained pending before court
below - Petition filed before High Court for
expeditious disposal of arbitration case - Held -
Court below directed to decide the Arbitration
Case within a period of six months from the
date of receipt of a certified copy - not to grant
any
unnecessary
adjournment
-
in
case
adjournment is to be granted in the interest of
justice court to record reasons for adjournment
& impose costs not below Rs.10,000/- for each
adjournment upon the party seeking such
adjournment - in case counsels abstain from
work on account of strike, parties be permitted
to appear in person & court to proceed and pass
appropriate orders - In case counsel does not
appear on account of strike not to permit such
counsel (of either party) to appear in the case
on all future dates & to take out appropriate
proceedings in law against the erring counsels -
if Presiding Officer is not available, matter may
be transferred to another competent court
which is available (Para 49)
Allowed (E-5)
List of Cases cited:-

## Text

_Characters 0–39,740 of 94,617. This is a partial read: ask again with offset=39740 for what follows._

168 INDIAN LAW REPORTS ALLAHABAD SERIES
the citizen of a country which is not an
enemy, continue to remain, save as
otherwise provided in this Act, vested in the
Custodian.

Explanation.--For the purposes of
this sub-section, "enemy property vested in
the Custodian" shall include and shall
always be deemed to have been included all
rights, titles, and interest in, or any benefit
arising out of, such property vested in him
under this Act.]

16. Thus, from the conjoint reading of
the aforesaid two sections, it would indicate
that there has never been any challenge to
the order passed under Section 5 dated 10th
of
September,
1965
by
which
the
immovable property of Jafar Hasan and
Maqbool Hasan vested with the custodian.
Even in the instant petition, the petitioner
has raised a feeble challenge to the
authorization order dated 18th of January,
1975. However, there is yet no challenge to
the vesting order dated 10th of September,
1965.

17. In the aforesaid backdrop, where the
fact that neither the father of the petitioner
nor the concerned person Jafar Hasan,, who
was admittedly alive till 1974, never assailed
the vesting order and moreover his other real
brother and co-sharers also stated before the
High Court that Jafar Hasan and his other real
brother Maqbool Hasan were Pakistani
nationals
and
under
the
aforesaid
circumstances, the earlier Division Bench had
passed the order dated 07.11.1979.

18. In light of the aforesaid order,
which has been relied upon by the
petitioner himself, while filing other writ
petition bearing No.1534 (M/S) of 2001,
the fact remains that it is now not open for
the petitioner to assail the aforesaid orders.
Moreover, under the Enemy Property Act,
there is a complete procedure which has
been provided regarding assailing the order
of vesting of property in terms of Section
18 of the Act which has further been made
appealable in terms of Section 18-C of the
said Act.

19. In view of the aforesaid facts the
submission of the learned counsel for the
petitioner does not merit consideration and even
otherwise
the
orders
dated
17.07.2020,
14.08.2020
and
13.02.2020
are
merely
consequential orders.

20. The petition is misconceived and is
accordingly dismissed, however, there shall be
no order as to costs.

21. In view of the aforesaid, the
submission of the learned counsel for the
petitioner does not have merit. The writ petition
is devoid of merit and is accordingly dismissed.
----------
(2020)10ILR A168
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.08.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Matters Under Article 227 No. 237 of 2020
(Civil)

Mrs. Madhuri Saxena ...Petitioner
Versus
Sahkari Awas Evam Vitt Nigam Ltd.
Sarojni Marg, Lucknow ...Respondent

Counsel for the Petitioner:
Shrish Chandra

Counsel for the Respondent:
-----
Civil Law - Arbitration and Conciliation Act
(26 of 1996)- Section 34(6) - Expeditious
disposal - Application for setting aside
10 All. Mrs. Madhuri Saxena Vs. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg, Lucknow 169
arbitral award - Courts to dispose off
within a period of one year from the date
on which the notice is served upon the
other party - Delay in disposal - in case
application is not decided within the
statutory time limit of one year, court
should make all out endeavours to decide
it
within
a
reasonable
time
frame
proximate thereafter - S. 34(6) directory
in nature, prevent the courts from being
rushed
into
decisions
by
breaching
fundamental norms of fairness and justice
- however, merely because S. 34(6) is
directory it does not permit courts to
extend
the
statutory
time
frame
indefinitely or unreasonably - Justice to be
meaningful has to be delivered in a
relevant time frame - (Para 29, 40, 41)
Arbitration case filed in the year 2017 against
the arbitral award - No effective hearing on any
dates - matter remained pending before court
below - Petition filed before High Court for
expeditious disposal of arbitration case - Held -
Court below directed to decide the Arbitration
Case within a period of six months from the
date of receipt of a certified copy - not to grant
any
unnecessary
adjournment
-
in
case
adjournment is to be granted in the interest of
justice court to record reasons for adjournment
& impose costs not below Rs.10,000/- for each
adjournment upon the party seeking such
adjournment - in case counsels abstain from
work on account of strike, parties be permitted
to appear in person & court to proceed and pass
appropriate orders - In case counsel does not
appear on account of strike not to permit such
counsel (of either party) to appear in the case
on all future dates & to take out appropriate
proceedings in law against the erring counsels -
if Presiding Officer is not available, matter may
be transferred to another competent court
which is available (Para 49)
Allowed (E-5)
List of Cases cited:-
1. M/s Shiv Cotex Vs Tirgum Auto Plast P. Ltd. &
ors. 2011 (89) ALR 232
2. Noor Mohammed Vs Jethanand & anr. (2013)
5 SCC 202
3. Siddhartha Kumar & ors. Vs Upper Civil Judge
(S.D.) Ghazipur & ors. AIR 1998 All 265
4. Indian Council of Legal Aid and Advice Vs Bar
Council of India (1995) 1 SCC 732
5. Sanjeev Datta, In re, (1995) 3 SCC 619
6. Mahabir Prasad Singh Vs Jacks Aviation (P)
Ltd. (1998) 1 SCC 201
7. Ramson Services (P) Ltd. Vs Subhash Kapoor
(2001) 1 SCC 118
8. B.L. Wadehra (Dr) Vs State (NCT of Delhi)
AIR 2000 Del 266
9. Ex-Capt. Harish Uppal Vs U.O.I. & anr.
(2003) 2 SCC 45
10. Supreme Court Bar Association Vs U.O.I.
(1998) 4 SCC 409

11. Krishnakant Tamrakar Vs St of M.P. AIR
(2018) SC 3635

(Delivered by Hon'ble Ajay Bhanot, J.)

1. This petition has been filed with
the following prayer:

"A. To issue an appropriate
order or direction to the learned
District Judge, Ghaziabad (Prescribed
Authority), to forthwith decide and
conclude
the
proceedings
of
Arbitration
Case No.903 of 2017
(Sahkari Awas Nirman Evam Vitt
Nigam Ltd. Vs. Paresh Saxena) as
expeditiously as possible and within
the time stipulated by this Hon'ble
Court
without
granting
any
unnecessary adjournments.
170 INDIAN LAW REPORTS ALLAHABAD SERIES

B. To issue an appropriate order
or direction to the learned District Judge,
Ghaziabad
to
forthwith
decide
the
execution application in furtherance of the
arbitral award filed in Execution Case
No.59 of 2017 (Paresh Saxena Vs. Sahkari
Awas Nirman Evam Vitt Nigam Ltd.) as
expeditiously as possible and within the
time stipulated by this Hon'ble Court
without
granting
any
unnecessary
adjournments."

2. Proceedings under Section 34 of
the Arbitration and Conciliation Act, 1996
taken out by the petitioner against the
arbitral award dated 29.05.2017, rendered
by the learned sole Arbitrator, came to be
registered as Arbitration Case No.903 of
2017 (Sahkari Awas Nirman Evam Vitt
Nigam Ltd. Vs. Paresh Saxena) before the
learned District Judge, Ghaziabad.

3. After institution of the proceedings,
the matter was first placed before the
learned Presiding Officer on 24.08.2017
but no one was present and the case was
posted for 04.09.2017. On 04.09.2017 no
effective hearing could happen because the
counsels abstained from work in pursuance
of a strike call. On 12.09.2017, the counsels
again abstained from work on account of
strike call and the learned Presiding Officer
did not proceed with the case. The case was
thereafter
posted
before
the
learned
Presiding Officer on 18.09.2017. Notices
were issued to the petitioner on 18.09.2017.
The order-sheet of the proceedings on
21.12.2017, 19.01.2018 and 21.03.2018,
records that notices had not been served
upon the petitioner. The order-sheet of
30.04.2018 and 29.05.2018 reveals that the
petitioner had not been served with the
notice.
Consequently
the
respondentSahkari Awas Nirman Evam Vitt Nigam
Ltd. was required to take fresh steps for
service.
The
petitioner
subsequently
entered appearance, and tendered its
objections to the application instituting the
proceedings under Section 34 of the
Arbitration and Conciliation Act, 1996 on
23.08.2018.

4. No hearing could take place on
23.08.2018
since
the
lawyers
were
abstaining from work on account of strike
calls. The matter was again posted on
31.08.2018 and 07.09.2018 on which dates
counsels were present. But the matter could
not be taken up due to pre-occupation of
the
learned
Presiding
Officer.
On
27.09.2018, again the counsels abstained
from work due to strike call.

5. On
12.11.2018, 14.12.2018,
10.01.2019 and 20.12.2019, the learned
Presiding Officer could not hold the court
due to various reasons like being on
training or on leave.

6. A perusal of the order-sheet on
subsequent dates reveals these facts. The
counsel for the respondent-Sahkari Awas
Nirman Evam Vitt Nigam Ltd. was present
on 01.02.2019, however, the petitioner was
not present. On 04.04.2019 the respondent's
pairokar
was
present,
however,
the
petitioner was not present. On 30.08.2019,
the respondent-Sahkari Avas Evam Vitt
Nigam Ltd. was not present, however,
petitioner's
pairokar
was
present
to
prosecute the case.

7. An application registered as
application 16-C submitted by the counsel
for the respondent (Sahkari Avas Evam
Vitt Nigam Ltd.), before the learned
Presiding Officer for summoning of the
records of the arbitration proceedings, was
served upon the petitioner before the court
below
on
28.11.2018.
Application
10 All. Mrs. Madhuri Saxena Vs. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg, Lucknow 171
registered as paper no.17-C was submitted
by the petitioner in the court below on
21.02.2019, while the copies of the same
were supplied to the learned counsel for the
Sahkari Awas Nirman Evam Vitt Nigam
Limited on 12.03.2019. Due to preoccupation of the learned Presiding Officer
in other matters, the aforesaid applications
could not be heard on various dates
including 03.05.2019 and 01.11.2019.

8. No one was present on 04.09.2017,
12.09.2017, 30.05.2019 and 06.02.2020, as
lawyers
were
on
strike.
The
court
proceedings were completely stalled by the
striking lawyers on the aforesaid dates. The
matter thus remains pending before the
learned court below.

9. The constitutional courts are
cognizant of the problem of delays in our
judicial system. They have consistently
attempted to purge the legal system of this
menace. Various judgments have identified
some of the causes of delays, & appropriate
judicial directions have been issued to
address the problem.

10. The following question was posed
for
determination
before
the
Hon'ble
Supreme Court in M/s Shiv Cotex Versus
Tirgum Auto Plast P. Ltd. and others,
reported at 2011 (89) ALR 232 :

"14.....Is the court obliged to give
adjournment
after
adjournment
merely
because the stakes are high in the dispute?
Should the court be silent spectator and leave
control of the case to a party to the case who
has decided not to take the case forward?"

11. Thereafter, the Hon'ble Supreme
Court while emphasizing the imperative of
expeditious disposal of suits to preserve the
faith in the judicial system held thus:

"15...It is sad, but true, that the
litigants seek - and the courts grant -
adjournments at the drop of the hat. In the
cases where the judges are little pro-active
and refuse to accede to the requests of
unnecessary adjournments, the litigants
deploy all sorts of methods in protracting
the litigation. It is not surprising that civil
disputes drag on and on. The misplaced
sympathy and indulgence by the appellate
and revisional courts compound the malady
further. The case in hand is a case of such
misplaced sympathy. It is high time that
courts become sensitive to delays in justice
delivery
system
and
realize
that
adjournments do dent the efficacy of
judicial process and if this menace is not
controlled adequately, the litigant public
may lose faith in the system sooner than
later. The courts, particularly trial courts,
must ensure that on every date of hearing,
effective progress takes place in the suit."

16....No litigant has a right to
abuse the procedure provided in CPC.
Adjournments have grown like cancer
corroding the entire body of justice
delivery system."

17....."A party to the suit is not at
liberty to proceed with the trial at its leisure
and pleasure and has no right to determine
when the evidence would be let in by it or
the matter should be heard. The parties to a
suit -- whether the plaintiff or the defendant
-- must cooperate with the court in ensuring
the effective work on the date of hearing
for which the matter has been fixed. If they
don't, they do so at their own peril."

12. Interminable delays caused by
unnecessary adjournments sought for and
granted to parties in a routine manner, and
the collective responsibility of all the stake
holders in the judicial system arose for
determination before the Hon'ble Supreme
Court in Noor Mohammed Vs. Jethanand
172 INDIAN LAW REPORTS ALLAHABAD SERIES
and another, reported at (2013) 5 SCC
202.

13.

Dispensing
justice
is
the
fundamental raison d'etre of the judicial
system. Timely delivery of justice is
indispensable to retaining the faith of the
common man in the justice dispensation
system.

14. Reiterating the importance of
timely delivery of justice, and after setting
its face against indifference of the judicial
system to the plight of the litigants, the
Hon'ble
Supreme
Court
in
Noor
Mohammed (supra) defined the problem
and issued directions for its resolution :

"27. The anguish expressed in the
past and the role ascribed to the Judges,
lawyers and the litigants is a matter of
perpetual concern and the same has to be
reflected upon every moment. An attitude
of indifference can neither be appreciated
nor tolerated. Therefore, the serviceability
of the institution gains significance. That is
the command of the Majesty of Law and
none should make any maladroit effort to
create
a
concavity
in
the
same.
Procrastination, whether at the individual
or institutional level, is a systemic disorder.
Its corrosive effect and impact is like a
disorderly state of the physical frame of a
man suffering from an incurable and fast
progressive malignancy. Delay either by
the functionaries of the court or the
members of the Bar significantly exhibits
indolence and one can aphoristically say,
borrowing a line from Southwell "Creeping
snails have the weakest force". Slightly
more than five decades back, talking about
the responsibility of the lawyers, Nizer
Louis[16] had put thus: -

"I consider it a lawyer's task to
bring calm and confidence to the distressed
client. Almost everyone who comes to a
law office is emotionally affected by a
problem. It is only a matter of degree and
of the client's inner resources to withstand
the pressure."

A few lines from illustrious
Frankfurter is fruitful to recapitulate:

"I think a person who throughout
his life is nothing but a practicing lawyer
fulfils a very great and essential function in
the
life
of
society.
Think
of
the
responsibilities on the one hand and the
satisfaction on the other, to be a lawyer in
the true sense."

28. In a democratic set up,
intrinsic and embedded faith in the
adjudicatory system is of seminal and
pivotal concern. Delay gradually declines
the citizenry faith in the system. It is the
faith and faith alone that keeps the system
alive. It provides oxygen constantly.
Fragmentation of faith has the effectpotentiality to bring in a state of cataclysm
where justice may become a casuality. A
litigant expects a reasoned verdict from a
temperate Judge but does not intend to and,
rightly so, to guillotine much of time at the
altar of reasons. Timely delivery of justice
keeps the faith ingrained and establishes
the sustained stability. Access to speedy
justice is regarded as a human right which
is deeply rooted in the foundational concept
of democracy and such a right is not only
the creation of law but also a natural right.
This right can be fully ripened by the
requisite commitment of all concerned with
the system. It cannot be regarded as a facet
of Utopianism because such a thought is
likely to make the right a mirage losing the
centrality of purpose. Therefore, whoever
has a role to play in the justice dispensation
system cannot be allowed to remotely
conceive of a casual approach.

33. In the case at hand, as we
perceive, the learned counsel sought
10 All. Mrs. Madhuri Saxena Vs. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg, Lucknow 173
adjournment
after
adjournment
in
a
nonchalant manner and the same were
granted in a routine fashion. It is the duty
of the counsel as the officer of the court to
assist the court in a properly prepared
manner and not to seek unnecessary
adjournments. Getting an adjournment is
neither an art nor science. It has never been
appreciated by the courts. All who are
involved in the justice dispensation system,
which includes the Judges, the lawyers, the
judicial officers who work in courts, the
law officers of the State, the Registry and
the litigants, have to show dedicated
diligence so that a controversy is put to
rest. Shifting the blame is not the cure.
Acceptance of responsibility and dealing
with it like a captain in the frontier is the
necessity of the time. It is worthy to state
that diligence brings satisfaction. There has
to be strong resolve in the mind to carry out
the responsibility with devotion. A time has
come when all concerned are required to
abandon idleness and arouse oneself and
see to it that the syndrome of delay does
not erode the concept of dispensation of
expeditious
justice
which
is
the
constitutional
command.
Sagacious
acceptance of the deviation and necessitous
steps taken for the redressal of the same
would be a bright lamp which would
gradually become a laser beam. This is the
expectation of the collective, and the said
expectation has to become a reality.
Expectations are not to remain at the stage
of hope. They have to be metamorphosed
to actuality. Long back, Francis Bacon, in
his aphoristic style, had said, "Hope is good
breakfast, but it is bad supper". We say no
more on this score."

15. In Gayathri Vs. M.Girish, reported
at (2016) 14 SCC 142, the Hon'ble Supreme
Court exhorted the trial courts to address
themselves to the malady of long delays in
our judicial system:

"9. In the case at hand, as we have
stated hereinbefore, the examination-in-chief
continued for long and the matter was
adjourned seven times. The Defendant sought
adjournment after adjournment for crossexamination on some pretext or the other
which are really not entertainable in law. But
the trial Court eventually granted permission
subject to payment of costs. Regardless of the
allowance extended, the Defendant stood
embedded on his adamantine platform and
prayed for adjournment as if it was his right
to
seek
adjournment on
any
ground
whatsoever and on any circumstance. The
non-concern of the Defendant-Petitioner
shown towards the proceedings of the Court
is absolutely manifest. The disregard shown
to the Plaintiff's age is also visible from the
marathon of interlocutory applications filed.
A counsel appearing for a litigant has to have
institutional responsibility. The Code of Civil
Procedure so command. Applications are not
to be filed on the grounds which we have
referred to hereinabove and that too in such a
brazen and obtrusive manner. It is wholly
reprehensible. The law does not countenance
it and, if we permit ourselves to say so, the
professional ethics decries such practice. It is
because such acts are against the majesty of
law.

12. In the case at hand, it can
indubitably be stated that the DefendantPetitioner has acted in a manner to cause
colossal insult to justice and to the concept
of speedy disposal of civil litigation. We
are constrained to say the virus of seeking
adjournment has to be controlled. The
saying of Gita "Awake! Arise! Oh Partha"
is apt here to be stated for guidance of trial
courts."
174 INDIAN LAW REPORTS ALLAHABAD SERIES

16. This Court in Siddhartha Kumar
and others etc. Vs. Upper Civil Judge,
Senior Division, Ghazipur and others,
reported at AIR 1998 All 265 made a
searching enquiry into the causes of delay
in the disposal of matters pending in the
trial courts. Thereafter, comprehensive
directions were issued in this regard. Some
of the directions were to be implemented
by this court on the administrative side.

17. The calling of law envisages
highest standards of professionalism and
ethical conduct on part of lawyers, while
assisting the process of law. In the same
breath law has set its face firmly against the
lawyers abstaining from work in pursuance
of strike calls. Good and high authorities in
point have entrenched these propositions in
our legal blood stream. Speaking to the
obligations of the legal fraternity ingeneral, and the imperative of maintaining
highest standards of professional conduct
and morality among the lawyers in
particular, the Hon'ble Supreme Court in
Indian Council of Legal Aid and Advice
Vs Bar Council of India reported at (1995)
1 SCC 732 stated:

"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."

18. Adherence to high standards of
ethical and noble conduct in the personal
and private lives of lawyers as members of
the legal fraternity was reiterated by the
Hon'ble Supreme Court in Sanjeev Datta,
In re, reported 1995 (3) SCC 619:

"20. The legal profession is a
solemn and serious occupation. It is a noble
calling and all those who belong to it are its
honourable members. Although the entry to
the profession can be had by acquiring
merely the qualification of technical
competence, the honour as a professional
has to be maintained by its members by
their exemplary conduct both in and
outside the court. The legal profession is
different from other professions in that
what the lawyers do, affects not only an
individual but the administration of justice
which is the foundation of the civilized
society. Both as a leading member of the
intelligentsia of the society and as a
responsible citizen, the lawyer has to
conduct himself as a model for others both
in his professional and in his private and
public life. The society has a right to expect
of him such ideal behaviour. It must not be
forgotten that the legal profession has
always been held in high esteem and its
members have played an enviable role in
public life. The regard for the legal and
judicial systems in this country is in no
small measure due to the tireless role
played by the stalwarts in the profession to
strengthen them. They took their profession
seriously and practised it with dignity,
deference and devotion. If the profession is
to survive, the judicial system has to be
vitalised. No service will be too small in
making the system efficient, effective and
credible."
10 All. Mrs. Madhuri Saxena Vs. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg, Lucknow 175

19. In Mahabir Prasad Singh Vs
Jacks Aviation (P) Ltd. reported at 1998
(1) SCC 201 the Hon'ble Supreme Court
dwelt on the obligations of courts when
faced with strike calls by an Association of
Advocates, and required the courts to
proceed with the judicial business and not
yield to strike calls or any pressure tactics:

"If any counsel does not want to
appear in a particular court, that too for
justifiable reasons, professional decorum
and etiquette require him to give up his
engagement in that court so that the party
can engage another counsel. But retaining
the brief of his client and at the same time
abstaining from appearing in that court, that
too not on any particular day on account of
some
personal
inconvenience
of
the
counsel but as a permanent feature, is
unprofessional as also unbecoming of the
status of an advocate. No court is obliged to
adjourn a cause because of the strike call
given by any association of advocates or a
decision to boycott the courts either in
general or any particular court. It is the
solemn duty of every court to proceed with
the judicial business during court hours. No
court should yield to pressure tactics or
boycott calls or any kind of browbeating."

20. Mahabir Prasad Singh (supra)
was also followed by Hon'ble Supreme
Court in Ramson Services (P) Ltd. Vs
Subhash Kapoor reported at 2001 (1) SCC
118, wherein the Hon'ble Supreme Court
penalised
the
erring
advocates
by
observing:

"15. Therefore, we permit the
appellant to realise half of the said amount
of Rs 5000 from the firm of advocates M/s
B.C. Das Gupta & Co. or from any one of
its partners. Initially we thought that the
appellant could be permitted to realise the
whole amount from the said firm of
advocates. However, we are inclined to
save the firm from bearing the costs
partially since the Supreme Court is
adopting such a measure for the first time
and the counsel would not have been
conscious of such a consequence befalling
them. Nonetheless we put the profession to
notice that in future the advocate would
also be answerable for the consequence
suffered by the party if the non-appearance
was solely on the ground of a strike call. It
is unjust and inequitable to cause the party
alone to suffer for the self-imposed
dereliction of his advocate. We may further
add that the litigant who suffers entirely on
account of his advocate's non-appearance in
court, has also the remedy to sue the
advocate for damages but that remedy
would remain unaffected by the course
adopted in this case. Even so, in situations
like this, when the court mulcts the party
with costs for the failure of his advocate to
appear, we make it clear that the same court
has power to permit the party to realise the
costs
from
the
advocate
concerned.
However, such direction can be passed only
after affording an opportunity to the
advocate. If he has any justifiable cause the
court can certainly absolve him from such a
liability. But the advocate cannot get
absolved merely on the ground that he did
not attend the court as he or his association
was on a strike. If any advocate claims that
his right to strike must be without any loss
to him but the loss must only be for his
innocent client such a claim is repugnant to
any principle of fair play and canons of
ethics. So when he opts to strike work or
boycott the court he must as well be
prepared to bear at least the pecuniary loss
suffered by the litigant client who entrusted
his brief to that advocate with all
confidence that his cause would be safe in
the hands of that advocate.
176 INDIAN LAW REPORTS ALLAHABAD SERIES

16. In all cases where the court is
satisfied that the ex parte order (passed due
to the absence of the advocate pursuant to
any strike call) could be set aside on terms,
the court can as well permit the party to
realise the costs from the advocate
concerned without driving such party to
initiate another legal action against the
advocate.

17. We may also observe that it is
open to the court as an alternative course to
permit the party (while setting aside the ex
parte order or decree earlier passed in his
favour) to realise the cost fixed by the court
for that purpose, from the counsel of the
other party whose absence caused the
passing of such ex parte order, if the court
is satisfied that such absence was due to
that counsel boycotting the court or
participating in a strike."

21. The Hon'ble Delhi High Court in
B.L. Wadehra (Dr) Vs State (NCT of
Delhi) reported at AIR 2000 Del 266 held
that a lawyers strike would infringe the
fundamental rights of litigants for speedy
trial, and that such strikes interfere with the
administration of justice. The observations
of the Hon'ble Delhi High Court which
were cited with approval by the Hon'ble
Supreme Court in Ex-Capt. Harish Uppal
Vs Union of India and another reported at
(2003) 2 SCC 45 are reproduced herein to
support this narrative:

"30.
In
the
light
of
the
abovementioned views expressed by the
Supreme Court, lawyers have no right to
strike i.e. to abstain from appearing in
Court in cases in which they hold vakalat
for the parties, even if it is in response to or
in compliance with a decision of any
association or body of lawyers. In our view,
in exercise of the right to protest, a lawyer
may refuse to accept new engagements and
may even refuse to appear in a case in
which he had already been engaged, if he
has been duly discharged from the case.
But so long as a lawyer holds the vakalat
for his client and has not been duly
discharged, he has no right to abstain from
appearing in Court even on the ground of a
strike called by the Bar Association or any
other body of lawyers. If he so abstains, he
commits a professional misconduct, a
breach of professional duty, a breach of
contract and also a breach of trust and he
will be liable to suffer all the consequences
thereof. There is no fundamental right,
either under Article 19 or under Article 21
of the Constitution, which permits or
authorises a lawyer to abstain from
appearing in Court in a case in which he
holds the vakalat for a party in that case.
On the other hand a litigant has a
fundamental right for speedy trial of his
case, because, speedy trial, as held by the
Supreme Court in Hussainara Khatoon (I)
v. Home Secy., State of Bihar [(1980) 1
SCC 81 : 1980 SCC (Cri) 23 : AIR 1979
SC 1360] is an integral and essential part of
the fundamental right to life and liberty
enshrined in Article 21 of the Constitution.
Strike by lawyers will infringe the
abovementioned fundamental right of the
litigants and such infringement cannot be
permitted. Assuming that the lawyers are
trying
to
convey
their
feelings
or
sentiments and ideas through the strike in
exercise of their fundamental right to
freedom
of
speech
and
expression
guaranteed by Article 19(1)(a) of the
Constitution, we are of the view that the
exercise of the right under Article 19(1)(a)
will come to an end when such exercise
threatens to infringe the fundamental right
of another. Such a limitation is inherent in
the exercise of the right under Article
19(1)(a). Hence the lawyers cannot go on
strike infringing the fundamental right of
10 All. Mrs. Madhuri Saxena Vs. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg, Lucknow 177
the litigants for speedy trial. The right to
practise any profession or to carry on any
occupation guaranteed by Article 19(1)(g)
may include the right to discontinue such
profession or occupation but it will not
include any right to abstain from appearing
in Court while holding a vakalat in the
case. Similarly, the exercise of the right to
protest by the lawyers cannot be allowed to
infract the litigant's fundamental right for
speedy trial or to interfere with the
administration of justice. The lawyer has a
duty and obligation to cooperate with the
Court
in
the
orderly
and
pure
administration of justice. Members of the
legal
profession
have
certain
social
obligations also and the practice of law has
a public utility flavour. According to the
Bar Council of India Rules, 1975 'an
advocate shall, at all times, comport
himself in a manner befitting his status as
an officer of the Court, a privileged
member
of
the
community
and
a
gentleman, bearing in mind that what may
be lawful and moral for a person who is not
a member of the Bar or for a member of the
Bar in his non-professional capacity, may
still be improper for an advocate'. It is
below the dignity, honour and status of the
members of the noble profession of law to
organize and participate in strike. It is
unprofessional and unethical to do so. In
view of the nobility and tradition of the
legal profession, the status of the lawyer as
an officer of the court and the fiduciary
character of the relationship between a
lawyer and his client and since strike
interferes with the administration of justice
and infringes the fundamental right of
litigants for speedy trial of their cases,
strike by lawyers cannot be approved as an
acceptable mode of protest, irrespective of
the gravity of the provocation and the
genuineness of the cause. Lawyers should
adopt other modes of protest which will not
interrupt or disrupt court proceedings or
adversely affect the interest of the litigant.
Thereby lawyers can also set an example to
other sections of the society in the matter of
protest and agitations.

31. Every court has a solemn duty
to proceed with the judicial business during
court hours and the court is not obliged to
adjourn a case because of a strike call. The
court is under an obligation to hear and
decide cases brought before it and it cannot
shirk that obligation on the ground that the
advocates are on strike. If the counsel
or/and the party does not appear, the
necessary consequences contemplated in
law should follow. The court should not
become privy to the strike by adjourning
the case on the ground that lawyers are on
strike. Even in Common Cause case
[(1995) 1 Scale 6] the Supreme Court had
asked the members of the legal profession
to be alive to the possibility of Judges
refusing adjournments merely on the
ground of there being a strike call and
insisting on proceeding with the cases.
Strike infringes the litigant's fundamental
right for speedy trial and the court cannot
remain a mute spectator or throw up its
hands in helplessness on the face of such
continued violation of the fundamental
right.

32. Either in the name of a strike
or otherwise, no lawyer has any right to
obstruct or prevent another lawyer from
discharging
his
professional
duty
of
appearing in court. If anyone does it, he
commits a criminal offence and interferes
with the administration of justice and
commits contempt of court and he is liable
to be proceeded against on all these
counts."

22. The Hon'ble Supreme Court in
Ex-Capt. Harish Uppal (supra) noticed the
consequences of strikes/boycott calls. The
178 INDIAN LAW REPORTS ALLAHABAD SERIES
Constitution Bench of Hon'ble Supreme
Court found that such actions hold the
judicial system to ransom and threaten the
administration of justice :

"20. Thus the law is already well
settled. It is the duty of every advocate who
has accepted a brief to attend trial, even
though it may go on day to day and for a
prolonged period. It is also settled law that
a lawyer who has accepted a brief cannot
refuse to attend court because a boycott call
is given by the Bar Association. It is settled
law that it is unprofessional as well as
unbecoming for a lawyer who has accepted
a brief to refuse to attend court even in
pursuance of a call for strike or boycott by
the Bar Association or the Bar Council. It is
settled law that courts are under an
obligation to hear and decide cases brought
before them and cannot adjourn matters
merely because lawyers are on strike. The
law is that it is the duty and obligation of
courts to go on with matters or otherwise it
would tantamount to becoming a privy to
the strike. It is also settled law that if a
resolution is passed by Bar Associations
expressing want of confidence in judicial
officers, it would amount to scandalising
the courts to undermine its authority and
thereby the advocates will have committed
contempt of court. Lawyers have known, at
least since Mahabir Singh case [(1999) 1
SCC 37] that if they participate in a boycott
or a strike, their action is ex facie bad in
view of the declaration of law by this
Court. A lawyer's duty is to boldly ignore a
call for strike or boycott of court/s.
Lawyers have also known, at least since
Ramon Services case [(2001) 1 SCC 118 :
2001 SCC (Cri) 3 : 2001 SCC (L&S) 152]
that the advocates would be answerable for
the consequences suffered by their clients if
the non-appearance was solely on grounds
of a strike call.

21. It must also be remembered
that an advocate is an officer of the court
and enjoys special status in society.
Advocates have obligations and duties to
ensure smooth functioning of the court.
They owe a duty to their clients. Strikes
interfere with administration of justice.
They cannot thus disrupt court proceedings
and put interest of their clients in jeopardy.
In the words of Mr H.M. Seervai, a
distinguished jurist:

"Lawyers ought to know that at
least as long as lawful redress is available
to
aggrieved
lawyers,
there
is
no
justification for lawyers to join in an illegal
conspiracy to commit a gross, criminal
contempt of court, thereby striking at the
heart of the liberty conferred on every
person by our Constitution. Strike is an
attempt to interfere with the administration
of justice. The principle is that those who
have duties to discharge in a court of
justice are protected by the law and are
shielded by the law to discharge those
duties, the advocates in return have duty to
protect the courts. For, once conceded that
lawyers are above the law and the law
courts, there can be no limit to lawyers
taking the law into their hands to paralyse
the working of the courts. ''In my
submission', he said that ''it is high time
that the Supreme Court and the High
Courts make it clear beyond doubt that they
will not tolerate any interference from any
body
or
authority
in
the
daily
administration of justice. For in no other
way can the Supreme Court and the High
Courts maintain the high position and
exercise the great powers conferred by the
Constitution and the law to do justice
without fear or favour, affection or ill will."

22. It was expected that having
known the well-settled law and having seen
that repeated strikes and boycotts have
shaken the confidence of the public in the
10 All. Mrs. Madhuri Saxena Vs. Sahkari Awas Evam Vitt Nigam Ltd. Sarojni Marg, Lucknow 179
legal profession and affected administration
of justice, there would be self-regulation.
The abovementioned interim order was
passed in the hope that with self-restraint
and self-regulation the lawyers would
retrieve their profession from lost social
respect. The hope has not fructified.
Unfortunately strikes and boycott calls are
becoming a frequent spectacle. Strikes,
boycott
calls
and
even
unruly
and
unbecoming conduct are becoming a
frequent
spectacle.
On
the
slightest
pretence strikes and/or boycott calls are
resorted to. The judicial system is being
held to ransom. Administration of law and
justice is threatened. The rule of law is
undermined."

23. Further the Constitution Bench in
Ex-Capt. Harish Uppal (supra) relied on
the law laid down in Supreme Court Bar
Association Vs Union of India reported at
1998 (4) SCC 409 that every advocate
should boldly ignore call for strike/boycott:

"25. In the case of Supreme Court
Bar Assn. v. Union of India [(1998) 4 SCC
409] it has been held that professional
misconduct may also amount to contempt
of court (para 21). It has further been held
as follows: (SCC pp. 444-46, paras 79-80)

"79. An advocate who is found
guilty of contempt of court may also, as
already noticed, be guilty of professional
misconduct in a given case but it is for the
Bar Council of the State or Bar Council of
India to punish that advocate by either
debarring him from practice or suspending
his licence, as may be warranted, in the
facts and circumstances of each case.