[CASE NUMBER] (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] (O&M) Date of decision: 04.07.2012. [ENTITY] Petitioner Versus [ENTITY] Respondent CORAM: HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. [ENTITY], Advocate, for the petitioner. Mr. [ENTITY], Advocate, for the respondent. [ENTITY], J. (Oral)
This petition has been filed under [SECTION] [ACT] for quashing of order dated 15.10.2011 passed by learned Additional Sessions Judge, Rohtak, whereby, revision petition has been dismissed for want of prosecution.
Learned counsel for the petitioner submits that the impugned order has been passed by mentioning wrong facts stating that 10 effective opportunities were granted whereas it was the fault was of the lawyer, who was appearing for the petitioner and the client should not suffer for any inaction on the part of the lawyer representing the petitioner before the lower Court. Learned counsel has also brought to the notice of the Court the zimni orders passed on different dates. It is also the argument of learned counsel for the petitioner that ultimately notice was issued on 08.03.2011 but the same could not be served because of want of complete address and further time was given to furnish the correct address. The ground taken in the impugned order that 10 effective opportunities were granted is contrary to the facts as after 08.03.2011, case was adjourned on 25.05.2011, 02.09.2011 and on 02.09.2011, again adjourned for 10.10.2011 but it was taken up on 08.10.2011 as the Presiding Officer was on leave on 10.10.2011.
Learned counsel for the respondent opposes the submission made by learned counsel for the petitioner on the ground that the impugned order has rightly been passed as the petitioner was given sufficient opportunities but he neither supplied the copy of the petition nor furnished correct address. The purpose of the petitioner was to prolong the litigation and to harass the respondent. The petitioner has not even said a single word about the action taken against the lawyer who appeared before the trial Court as he was negligent in not supplying the copy of the petition and was taking unnecessary adjournments without any sufficient reason. Learned counsel for the respondent also submits that the present petition amounts to second revision which is not maintainable. The powers under [SECTION] [ACT] can only be used under special circumstances. No case is made out to interfere in the impugned order.
Heard the arguments of learned counsel for the parties and have also perused the impugned order as well as zimni orders and other documents available on the record.
The impugned order has been passed mainly on the grounds that the copy of the revision petition was not supplied and correct address was not supplied inspite availing 10 effective opportunities and thirdly the case was very old. Ultimately, the revision petition was dismissed for want of prosecution vide order dated 15.10.2011. On perusal of the zimni orders, it appears that the petitioner did not supply the copy of the revision petition on some dates but it is clear from the order dated 03.08.2010 that notice was issued for 06.08.2010 but was mentioned in the order with regard to non-supply of copy of revision petition.
On perusal of the order dated 08.03.2011, it is clear that notice could not be issued for want of copy of the revision and the petitioner was asked to file the same within 7 days. The case came up for hearing on 25.05.2011. Ultimately, copy was supplied and notice was issued but it could not be served for want of complete address as is clear from the order dated 25.05.2011. On 02.09.2011, last opportunity was granted and case was adjourned to 10.10.2011. The case was taken up on 08.10.2011 instead of 10.10.2011 as the Presiding Officer was to go on leave on 10.10.2011. The findings recorded by the trial Court are not in consonance with the zimni orders. Lapse was on the part of the counsel. The copy of the revision petition was to be supplied by the lawyer who was representing the petitioner before the trial Court. It was the duty of the lawyer to supply the copy of the revision petition. The petitioner cannot be made to suffer due to the act of the lawyer.
Admittedly, the powers under [SECTION] [ACT] are to be exercised under exceptional cases as it is to be seen whether any injustice or any prejudice has been done to other party. In the present case, the case was dismissed for want of prosecution only because of the negligence on the part of the lawyer and the petitioner should not suffer for the lapse on the part of the lawyer. Moreover, no prejudice has been caused to the other party.
The Hon'ble Supreme Court of India has made observation in case where it was held that the innocent client should not suffer because of the fault of the lawyer. This observation was made by Hon'ble the Supreme Court in paragraph No.3 of the judgment in [PRECEDENT] is reproduced as under: -
" xxx xxx xxx
3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. [ENTITY] stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe, we do not know, he is better informed in this matter.
Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. [ENTITY] invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest be represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned Advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200 should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. [ENTITY].
xxx xxx xxx"
The power of the High Court can be exercised not only in terms of [SECTION] of the Code but also in terms of [SECTION] thereof. The said provision reads thus :-
"483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates:- Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates."
Similarly in case [PRECEDENT] Hon'ble the Supreme Court while opining that the High Court in exercise of its jurisdiction under [SECTION] of the Code does not function either as a court of appeal or revision, which is held as under :-
"7. Exercise of power under [SECTION] of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
Keeping in view the facts and circumstances of the present case, the petition is allowed and the impugned order dated 15.10.2011 is set-aside as severe lapse was there on the part of the lawyer representing the petitioner and the other party has also suffered by attending the Court. It would be justified to impose cost upon the petitioner of `15,000/- to be paid to the respondent. Parties are directed to present before the revisional Court on 26.07.2012.
Disposed of accordingly.
04.07.2012 ([ENTITY] JUDGE