HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R. COURT NO. 4
CIVIL MISC. WRIT PETITION NO. 24557 OF 2007
Committee of Management & Anr.
Versus
State of Uttar Pradesh & Ors.
--------
Hon'ble Tarun Agarwala, J
A tricky situation has arisen namely whether a case listed on the cause list should be adjourned on account of an illness slip being sent by a counsel for a party, when, in fact, the said party is also being represented by another counsel, whose vakalatnama or instructions has not been withdrawn. This is a vexed question which has been troubling the Court for some time, but was being ignored because of social and other extenuating factors. But, now, the misuse of the illness slip has become rampant and now remedial measures are required to be introduced to curb this mal practice and revive the healthy traditions of the Court, which has been built over the last century. In the present scenario, and in the present working conditions of the Court and its dispensation of justice, the time has now come where the misuse of illness slip is required to be addressed by the Court itself. The Court cannot remain a silent spectator and allow this issue to be swept under the carpet.
On 30th of January, 2009, an illness slip was sent by the learned counsel for the respondent. It appears that there was more than one counsel, appearing for the said respondent. The learned counsel for the petitioner insisted that the case should not be adjourned since another counsel was also appearing for the same respondent. This Court, while accepting the contention of the learned counsel for the petitioner, none-the-less, adjourned the case and passed the following order:
"An illness slip has been sent by one of the counsel for the respondents and therefore, the matter is passed over today.
Sri Yogesh Kumar Saxena, the learned counsel for the petitioner submitted that there are several counsels appearing for the same respondent and therefore, the case should not be adjourned merely because one of the counsel has sent an illness slip.
The contention of the learned counsel for the petitioner appears to be correct. However, as per the tradition of this court, a case gets adjourned whenever a counsel sends an illness slip, therefore, the tradition of the Court will not be broken today.
However, the Court finds that the adjournment of a case on the ground of personal illness slip of an Advocate is being misused which the Court cannot ignored. Consequently, if more than one counsel appears for the same party and one counsel sends an illness slip, the case should not be adjourned since another counsel is also representing the same party. Consequently, before any order is passed on this issue, it would be appropriate that all the counsels practising in the High Court are made aware of this order.
Consequently, I direct the Registrar General of this Court to publish this order in the cause list for necessary information for all the Advocates of the Court. The Registry is also directed to supply a copy of the order to the President and Secretary of the High Court Bar Association as well as to the President and Secretary of the Advocates Association intimating them that the aforesaid issue will be heard by the Court on 10.2.2009 and that if they so desire, or any other advocate may address the Court on the said issue.
List this matter for further consideration on 10.2.2009. Interim order, if any, is extended till the next date of listing."
The aforesaid order was printed in the Cause List, published by the High Court, on several days. Notices to the President and Secretary of the two Bar Associations were served, and, in pursuance thereof, Shri V.C. Mishra, President of the Allahabad High Court Bar Association, Shri Daya Shanker Mishra, a member of the Bar Association and Shri A.B. Saran, Shri P.N. Saxena, Shri S.K. Verma, Senior Advocates appeared and addressed the Court and gave their suggestions. Shri Shambhoo Chopra, Advocate was authorised by the Advocates' Association, and addressed the Court and gave his inputs and suggestions. Shri Y.K. Saxena, the learned counsel for the petitioner also addressed the issue on the misuse of the illness slip, at length. Shri V.K. Rai and Shri Ashish Srivastava, Advocates also addressed the Court.
Shri V.C. Mishra, the learned Senior Counsel and President of the Allahabad High Court Bar Association submitted that the tradition of the Court should not be broken and the acceptance of the illness slip by the Court which is going on for more than a century should not be abandoned at the instance of one aggrieved Advocate. Further, the mere fact that certain Advocates were misusing the traditions of the Court and were deliberately filing their illness slips, and thereby, scuttling the hearing of the case, should be ignored in the larger interest of maintaining the traditions of the Court. The learned counsel submitted that these Advocates, who are misusing the illness slip, are the black sheep of the legal fraternity, and such acts should be condoned by the Court. The learned counsel submitted that on account of social factors and other extenuating circumstances, it becomes necessary for an Advocate to send an illness slip, and therefore, the Court should honour the illness slip. The learned counsel fairly conceded that where illness slip was being misused, the Court should step in and punish those Advocates, who misuse this facility, which has been followed over the last century.
Shri Daya Shanker Mishra, the learned counsel submitted that the delay in the dispensation of justice, on account of illness slip being sent by Advocates was miniscule, compared to the delay being caused by other factors. The learned counsel submitted that the delay in the disposal of the case, on account of the illness slip, was only 5%, and that the arrears and the pendency of the cases, which are mounting, was not on account of illness slip being sent by the Advocates.
Shri A.B. Saran, Shri P.N. Saxena and Shri S.K. Verma, the learned Senior Counsels of the Bar gave suggestions and submitted that in case an illness slip was sent by a particular counsel, the case may be adjourned on that date with an embargo that the same counsel would address the Court on the next date.
Shri Shambhoo Chopra, the learned counsel contended that a Rule should be framed, whereby only one Advocate should be made responsible and answerable to the Court, and suggested that the system of having an Advocate on Record, similar to the system followed by the Supreme Court, should be adopted and followed in the High Court also and, in this regard, submitted that the Rules of the Court should be appropriately amended. The learned counsel submitted that where an illness slip was being sent, it should be recorded in the order sheet, and upon continuous illness slip being sent, the case should be ordered to be listed peremptorily.
Shri Ashish Srivastava, a young member of the Bar was requested by the Court to address on this issue on behalf of the junior Advocates. The learned counsel submitted that the tradition of accepting the illness slip should be maintained and illness slip should be honoured by the Court, but, further submitted that the engagement of the second counsel on behalf the same party should only be done with the consent of the earlier counsel, and where such consent was not taken, the engagement of the second counsel, by necessary implication, would revoke the vakalatnama of the earlier counsel, in which event, the illness slip sent by the earlier counsel, should be ignored by the Court.
Shri Y.K. Saxena, the learned counsel for the petitioner vehemently submitted that the time has now come when the illness slip should be ignored, and once the case was listed on the board, it should not be adjourned on account of an illness slip being sent by an Advocate unless there was some extenuating factor which compelled the Court to adjourn the case. The learned counsel submitted that in any case, when two counsels are appearing for the same party, the case should not be adjourned at the instance of the illness slip of one counsel, especially when there was another counsel, who was competent to argue, and whose instructions had not been withdrawn.
Shri V.K. Rai, Advocate submitted that it was high time, the Court framed Rules to curb the misuse of the illness slip being sent by the Advocate and further submitted that on account of frequent misuse of the tradition of the Court, such Advocates should not be given any sympathy.
Traditions are not built on one day. This Court is more than 140 years old, and has built itself a rich tradition. Illness slip has been accepted by the Court since time immemorial and, till date, this tradition of accepting the illness slip is being maintained. The Court, however, notices that the use of illness slips is being misused by a large number of the Advocates for vested reasons. A common example of the misuse is that, on account of continuous illness slip being sent by an Advocate, the case gets adjourned, and on this basis, it allows the ex parte interim order to continue for days and months, and some times, for years. Eviction orders which has been stayed are not being vacated because illness slips is being sent by the counsel. Recovery proceedings are stayed and the case gets adjourned.
The tradition of this Court was considered by the Supreme Court in the case of Rais Ahmad Vs. State of U.P. & Ors., AIR 1999 SC 3080. The Supreme Court, itself, noticed the facility of illness slip being abused and misused by the Advocates. The Supreme Court held that the tradition of the Court in accepting illness slip, which has become a custom/practice of the Court, and which has been handed down from generation to generation, was being misused. The Supreme Court held:-
"10. "Traditions" of a Court are built upon the edifice of cooperation between Judges and lawyers over a period of years. "Traditions", are doctrines, customs, practices, beliefs and usages which are handed down from generation to generation. As pointed out earlier, one of the traditions of the Allahabad High Court, which is now more than 130 years old and has seen many generations of lawyers, is that a case would be adjourned on the "Illness Slip" of a counsel. This and other traditions of the Court bind the lawyers and Judges in a sacred relationship of mutual trust and understanding. The adjournment of a case on the "Illness Slip" reflects the Court's respect for the counsel and its consciousness that a lawyer or counsel, though an officer of the Court, is nevertheless a human being who can fall ill. It also reflects the faith and trust the lawyer has in the Court that the Court would, on his "illness slip", adjourn the case.
11. It is contended on behalf of the respondents that the facility of adjournment available to the counsel on the ground of "Illness Slip" is a facility which has been abused more often than not, so much so that interim orders once obtained have notoriously been found to have continued for a long time merely on the "illness slip" and, therefore, the facility of adjournment on this basis should be abolished so that the litigant whose counsel has fallen ill, may make alternative arrangement and the hearing of the case may not be affected. That may be true in rare cases and in that situation the Judges would not act upon the "Illness Slip" if it is found, from a mere look at the running order sheet, that the facility has been misused or abused. But, isolated examples would not be destructive of the noble tradition. Moreover, litigants in this country are generally poor (agriculturists) coming from rural areas or they are Govt. servants or workmen in an industrial establishment or the like and they cannot afford or manage the luxury of engaging another counsel. This privilege is available only to the Central or State Governments who not only have Standing Counsel but also standby counsel (panel lawyers) and, therefore, only the State counsel can dare plead for abolition of adjournment on "Illness Slip", which we hereby reject as absurd and inappropriate."
The procedure for sending an illness slip, which is being followed, as on date is, that an Advocate normally sends an information on a piece of paper, addressed to the Reader of the Court, praying that the Court may be informed that the counsel is unwell or ill, and that, the case listed may be passed over for that day. The Reader makes an endorsement on his Cause List, and when the case is called out, the Reader, at that stage, informs the Court about the illness of the counsel. As per the tradition of this Court, normally the case is passed over, unless for reasons, to be recorded, the Court chooses to ignore the illness slip.
Earlier, illness slip used to be recorded on the order sheet by the Reader of the Court, and if three illness slips were recorded, the Reader used to inform the Court, in which case, an order was passed by the Court directing the case to be listed peremptorily, but now, on account of pressure of work, this practice of recording the illness slip on the order sheet is no longer carried out by a majority of the Courts. The Reader is overburdened. He has no time to record the illness slips. There are other factors, which the Court does not wish to spell out.
There is another aspect to be considered. Till about two decades ago, a case, which was listed in the Cause List, was repeated on alternate days if the said case was adjourned or was not taken up on that day, and in this manner, the case used to remain on the cause list till such time an order was passed. But, now, if a case is adjourned on a particular date, there are chances that the case is de-listed and is not repeated, and if repeated, is listed only after two or three weeks, and in this manner, the hearing of a case gets delayed for oblique reasons. This results in the accumulation of pending cases.
The High Court has framed the Allahabad High Court Rules, 1952, which is commonly known as the Rules of the Court. Chapter VI, Rule 15 and Chapter VI, Rule 12 are two provisions, providing for an adjournment of a case. Under Chapter VI Rule 15, an Advocate can apply before the Chief Justice for adjournment of his case on account of various factors, including illness, and when such adjournment is granted by the Chief Justice, the cases of that counsel are adjourned for that period, and if during that period, a case does get listed in a Court, the said case is adjourned invariably by the Court.
But, where the Advocate suddenly takes ill, and has no time to apply for an adjournment before the Chief Justice, an oral mention is accepted in the Court when the Court begins it work for the day, and under Chapter VI, Rule 12, the illness slip sent on a piece of paper is accepted by the Court. For facility, the provision of Chapter VI, Rule 15 and Chapter VI Rule 12 of the Rules of the Court are quoted hereunder:-
"15. Advocate's application for postponement of his cases.- (1) The Chief Justice may on the application of an Advocate postpone his cases for such time as he may deem proper, if he is satisfied that such postponement is necessary on account of a marriage, death or illness or any other unavoidable or urgent reason.
(2) An application under this rule shall be accompanied by a list of cases desired to be postponed specifying the occasion or occasions, if any when any such case was previously postponed under this rule. It shall also indicate the cases in which the date of hearing has been fixed by a Bench. If any omission or inaccuracy in this regard is discovered in the application later. Or if any Advocate whose such application has been allowed is found to have appeared before any of the Benches of the Court or before any other Court or Tribunal except where the postponement has been ordered specially on ground of appearance before any particular Court or Tribunal, in any case, whether for orders, admission or hearing, the application for postponement of cases shall stand rejected automatically.
12. Court may order a case to stand out of its place or be adjourned on application- On an application made to it the Bench may for sufficient cause shown order any case-listed before it for hearing to stand out of its place in the Cause List or to be adjourned for such period as may be considered just. Where an adjournment for not more than three days is sought the application may be made orally. In considering whether there is sufficient cause any objection on behalf of the other party shall be taken into account.
A motion under this rule may be made as soon as the Bench begins its work for the day and shall not ordinarily be entertained if made at any other time:
Provided that no adjournment shall be granted under this rule unless there is sufficient work for the day."
Over the years, more than one counsel have started appearing on behalf of one party. At times, a litigant engages more than one counsel. Full liberty is given to a litigant to engage as many counsels as he desires. Section 24 of the Advocates Act, 1961 provides the criteria of a person to be admitted as an Advocate on a State roll. The person who fulfils the requirement of Section 24 for enrolment, becomes entitled to be enrolled as an Advocate, and on such enrolment, he acquires a right to practise in a Court of law. Having acquired a right to practice, he incurs certain obligations in regard to his conduct as a member of the legal profession.
In Indian Council of Legal Aid and Advice etc.etc. Vs. Bar Council of India & Anr., AIR 1995 SC 691, the Supreme Court explained the duties which an Advocate was required to follow in a Court of law. The Supreme Court held:
"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."
Section 49 of the Advocates Act confers power on the Bar Council of India to make rules for discharging its functions under the Act. Section 49 (1) (c) of the Act provides that the Bar Council will frame rules with regard to the standard of professional conduct and etiquette to be observed by the Advocates. In exercise of this power, the Bar Council of India has framed rules known as "Bar Council of India Rules", which has also been published in the Gazette of India. Chapter II of Part VI of the Bar Council of India Rules relates to rules governing Advocates, especially, towards standard of professional conduct and etiquettes. Rule 39 provides for the contingency where more than two counsels may appear on behalf of the same party. For facility, Rule 39 of the Rules, as framed by the Bar Council of India, is quoted hereunder.
"39. An advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons why the said consent could not be produced and he shall appear only after obtaining the permission of the Court."
A perusal of the aforesaid Rule indicates that an Advocate shall not enter appearance when there is already an Advocate appearing on behalf of the party, except with his consent, and where such consent is not produced, the subsequent Advocate is required to obtain permission from the Court. Infringement of this rule entails disciplinary action against the Advocate under the Advocates Act and rules framed by the Bar Council. The Bar Council has framed rules to punish such Advocates, who misconduct themselves. The general superintendence of ethics and etiquettes of the Advocates is the responsibility of the Bar Council, and the Bar Council has been charged with the duty to punish their members for misconduct.
However, the Court is constraint to observe that this rule is being misused with impunity and no effort is being made by the Bar Council to curb this mal practice, and one of the reasons is, that no complaint is made before the Bar Council. On the other hand, the Court is saddled with this malaise, and gets over burdened with the frequent delay caused in the disposal of the case ,on account of illness slip being sent by more than one counsel.
In re Sanjiv Datta, Deputy Secretary, Ministry of Information and Broadcasting, New Delhi & Ors., (1995) 3 SCC 619, the Supreme Court pointed out that this service which the members of the profession are rendering by their absence (emphasis is mine), when the matters are called out, would wreck the system from within before it is wrecked from outside, if corrective measures are not taken in time. These observations of the Supreme Court is like a prophecy coming true.
In Ex. Capt. Harish Uppal Vs. Union of India & Anr., AIR 2003 SC 739, the Supreme Court held that an Advocate is an officer of the Court and enjoys a high status in society and has an obligation and duty to ensure smooth functioning of the Court. The Supreme Court held that an Advocate cannot disrupt the proceedings of the Court, nor can it jeopardise the interest of his client. This observation was made by the Supreme court in relation to the advocates going on strike and putting the judicial system to ransom.
Continuous illness slips sent by the Advocates amounts to a misuse of the process of the Court, and the indulgence granted by the Court. By the process of sending continuous illness slip, a fetter is placed in the smooth running of the administration of law, which gets threatened. Courts are under no obligation to adjourn a matter because an Advocate has sent an illness slip. On the contrary, it is the duty of the Court to go on with the matter with the cases listed on the Cause List even in the absence of the Advocate. But, on account of the rich tradition, this Court has been honouring the illness slips being sent by the advocates. But, now, on account of the blatant misuse of the illness slip, the time has come for the High Court to frame a specific rule with regard to the control of conduct of the Advocates in Court, which the High Court can frame and which is within its domain as per Section 34 of the Advocates Act. The Court finds that the High Court has framed certain rules under Section 34 of the Advocates Act, which are incorporated under Part VI Chapter XXIV of the Rules of the Court. Section 34 of the Advocates Act gives power to the High Court to frame rules, including rules regarding conditions on which a person, including an Advocate, can practise in the High Court. An Advocate's right to appear in a Court is not an absolute right, but is hedged by such conditions, as laid down by the Court. What happens inside the Court can always be regulated by the Court. The Supreme Court in Common Cause, a Registered Society & Ors. Vs. Union of India & Ors., (2006) 9 SCC 295 held:
"...The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts..."
In a similar fashion, the Court can impose an embargo for not accepting an illness slip where continuous illness slip is being sent, or where two Advocates are appearing for the same party and one of the Advocates sends an illness slip. The Court can easily ignore an illness slip since another Advocate is representing the same party and who can easily address the Court.
In the light of the aforesaid, it is clear that in spite of Rule 39 being framed by the Bar Council of India, the said rule is being violated with impunity by the members of the legal profession. No consent is taken by the Advocate from the earlier counsel, nor does he take permission from the Court to appear and address the Court. Violation of this rule entails disciplinary action against the Advocate, but, the Bar Council ignores this Rule, as a result of which, the lawyers/Advocates are filing their appearances in complete disregard to the mandatory provision. This Court in R.N. Singh Vs. State of U.P. & Ors., 1988 All C.J. 48 had noticed the provision of Rule 39 framed by the Bar Council of India and held that a counsel, not taking consent from the previous counsel already appearing, commits an error and violates Rule 39 of the Bar Council Rules.
In view of the aforesaid, the Court finds that the Rules of the Court needs to be amended and a provision with regard to the misuse of the illness slips is required to be incorporated under Chapter VI of the Rules of the Court. Further, rules relating to the conduct and etiquette of the Advocate appearing in the Court needs to be incorporated under Chapter XXIV of the Rules of the Court.
Consequently, in the light of the aforesaid, this vexed issue of misuse of illness slip is being disposed of with the following directions:-
1.The High Court is required to frame Rules of conduct for Advocates under Section 34 of the Advocates Act by appropriately amending Chapter XXIV of the Rules of the Court.
2.The High Court is directed to make provisions with regard to the misuse of illness slip by making appropriate amendment in Chapter VI of the Rules of the Court.
3.Rules relating to Advocate on Record, as framed by the Supreme Court of India should also be framed by the High Court, by which, one Advocate is made answerable and responsible for receiving affidavit, counter affidavit, rejoinder affidavit, notices, etc. and would also be made answerable to the Court and adjournment could only be sought by that counsel in the Court.
4.So long as necessary amendments are not incorporated in the Rules of the Court, the tradition, which has been built brick by brick over the last 140 years, will continue and will be honoured by the Court as far as possible with slight modifications, namely,
(a) Illness slip are to be recorded by the Reader of the Court, whether the case is taken up or not, and this has to be followed scrupulously. The Registrar General is directed to issue necessary directions to all the Readers of the Court for compliance.
(b) When an illness slip is sent, it should be honoured by the Court unless the Court records reasons for ignoring the illness slip. This is in consonance with the tradition of the Court.
(c) Upon three illness slips being recorded, the Reader of the Court will inform the Bench, and then, it would be open to the discretion of the Court to direct the said case to be listed peremptorily, or to ignore or honour the illness slip, as the case may be.
(d) Once a case is listed peremptorily, the case would not be adjourned on the ground of illness slip of the counsel, on whose instance, the case was adjourned earlier and was directed to be listed peremptorily.
(e) On the question of engagement of more than two counsels on behalf of a litigant, it is open to the litigant to engage as many counsel as he or she likes, but whenever a second counsel is engaged, the said counsel is required to take consent in writing from the earlier counsel, failing which, the said counsel is required to take permission from the Court.
(f) In addition to the above, when a vakalatnama is filed by the second counsel, the counsel is also required to file an affidavit of his client indicating as to which counsel would now argue the matter, even though, the vakalatnama of the earlier counsel has not been withdrawn. This is essential because a litigant may engage as many counsel as he likes, but the Court places a fetter, namely, that only one counsel can address the Court. Consequently, an affidavit to this effect, is essential.
These directions will be effective and would be followed from 1st of May, 2009 onwards and will continue till such time appropriate amendments are made in the Rules of the Court.
Certified copy of this order shall be placed before the Registrar General within three weeks from today, who is directed to take follow up action by placing it before the Hon'ble Chief Justice for issuing necessary directions for making necessary amendments in the Rules of the Court, as suggested by the Court. The Registrar General is further directed to print a gist of this order and directions of the Court in the Cause List on several days, so that the members of the Bar are made aware of the directions, which will come in force from 1st of May, 2009 onwards.
Certified copy of this order shall also be sent by the Registrar General to the President/Secretary of the two Bar Associations with a request to display the said order on their Notice Board for information to its members.
Before parting, the Court appreciates the submissions raised by various members of the Bar, and also appreciates the effort made by the Law Clerk, Ms. Aparna Srivastava, attached to the Court, for the extensive research done by her.
Put up this matter tomorrow for hearing on the merits of the case.
03.03.2009
AKSI
A.F.R. COURT NO. 4
CIVIL MISC. WRIT PETITION NO. 24557 OF 2007
Committee of Management & Anr.
Versus
State of Uttar Pradesh & Ors.
--------
Hon'ble Tarun Agarwala, J
A tricky situation has arisen namely whether a case listed on the cause list should be adjourned on account of an illness slip being sent by a counsel for a party, when, in fact, the said party is also being represented by another counsel, whose vakalatnama or instructions has not been withdrawn. This is a vexed question which has been troubling the Court for some time, but was being ignored because of social and other extenuating factors. But, now, the misuse of the illness slip has become rampant and now remedial measures are required to be introduced to curb this mal practice and revive the healthy traditions of the Court, which has been built over the last century. In the present scenario, and in the present working conditions of the Court and its dispensation of justice, the time has now come where the misuse of illness slip is required to be addressed by the Court itself. The Court cannot remain a silent spectator and allow this issue to be swept under the carpet.
On 30th of January, 2009, an illness slip was sent by the learned counsel for the respondent. It appears that there was more than one counsel, appearing for the said respondent. The learned counsel for the petitioner insisted that the case should not be adjourned since another counsel was also appearing for the same respondent. This Court, while accepting the contention of the learned counsel for the petitioner, none-the-less, adjourned the case and passed the following order:
"An illness slip has been sent by one of the counsel for the respondents and therefore, the matter is passed over today.
Sri Yogesh Kumar Saxena, the learned counsel for the petitioner submitted that there are several counsels appearing for the same respondent and therefore, the case should not be adjourned merely because one of the counsel has sent an illness slip.
The contention of the learned counsel for the petitioner appears to be correct. However, as per the tradition of this court, a case gets adjourned whenever a counsel sends an illness slip, therefore, the tradition of the Court will not be broken today.
However, the Court finds that the adjournment of a case on the ground of personal illness slip of an Advocate is being misused which the Court cannot ignored. Consequently, if more than one counsel appears for the same party and one counsel sends an illness slip, the case should not be adjourned since another counsel is also representing the same party. Consequently, before any order is passed on this issue, it would be appropriate that all the counsels practising in the High Court are made aware of this order.
Consequently, I direct the Registrar General of this Court to publish this order in the cause list for necessary information for all the Advocates of the Court. The Registry is also directed to supply a copy of the order to the President and Secretary of the High Court Bar Association as well as to the President and Secretary of the Advocates Association intimating them that the aforesaid issue will be heard by the Court on 10.2.2009 and that if they so desire, or any other advocate may address the Court on the said issue.
List this matter for further consideration on 10.2.2009. Interim order, if any, is extended till the next date of listing."
The aforesaid order was printed in the Cause List, published by the High Court, on several days. Notices to the President and Secretary of the two Bar Associations were served, and, in pursuance thereof, Shri V.C. Mishra, President of the Allahabad High Court Bar Association, Shri Daya Shanker Mishra, a member of the Bar Association and Shri A.B. Saran, Shri P.N. Saxena, Shri S.K. Verma, Senior Advocates appeared and addressed the Court and gave their suggestions. Shri Shambhoo Chopra, Advocate was authorised by the Advocates' Association, and addressed the Court and gave his inputs and suggestions. Shri Y.K. Saxena, the learned counsel for the petitioner also addressed the issue on the misuse of the illness slip, at length. Shri V.K. Rai and Shri Ashish Srivastava, Advocates also addressed the Court.
Shri V.C. Mishra, the learned Senior Counsel and President of the Allahabad High Court Bar Association submitted that the tradition of the Court should not be broken and the acceptance of the illness slip by the Court which is going on for more than a century should not be abandoned at the instance of one aggrieved Advocate. Further, the mere fact that certain Advocates were misusing the traditions of the Court and were deliberately filing their illness slips, and thereby, scuttling the hearing of the case, should be ignored in the larger interest of maintaining the traditions of the Court. The learned counsel submitted that these Advocates, who are misusing the illness slip, are the black sheep of the legal fraternity, and such acts should be condoned by the Court. The learned counsel submitted that on account of social factors and other extenuating circumstances, it becomes necessary for an Advocate to send an illness slip, and therefore, the Court should honour the illness slip. The learned counsel fairly conceded that where illness slip was being misused, the Court should step in and punish those Advocates, who misuse this facility, which has been followed over the last century.
Shri Daya Shanker Mishra, the learned counsel submitted that the delay in the dispensation of justice, on account of illness slip being sent by Advocates was miniscule, compared to the delay being caused by other factors. The learned counsel submitted that the delay in the disposal of the case, on account of the illness slip, was only 5%, and that the arrears and the pendency of the cases, which are mounting, was not on account of illness slip being sent by the Advocates.
Shri A.B. Saran, Shri P.N. Saxena and Shri S.K. Verma, the learned Senior Counsels of the Bar gave suggestions and submitted that in case an illness slip was sent by a particular counsel, the case may be adjourned on that date with an embargo that the same counsel would address the Court on the next date.
Shri Shambhoo Chopra, the learned counsel contended that a Rule should be framed, whereby only one Advocate should be made responsible and answerable to the Court, and suggested that the system of having an Advocate on Record, similar to the system followed by the Supreme Court, should be adopted and followed in the High Court also and, in this regard, submitted that the Rules of the Court should be appropriately amended. The learned counsel submitted that where an illness slip was being sent, it should be recorded in the order sheet, and upon continuous illness slip being sent, the case should be ordered to be listed peremptorily.
Shri Ashish Srivastava, a young member of the Bar was requested by the Court to address on this issue on behalf of the junior Advocates. The learned counsel submitted that the tradition of accepting the illness slip should be maintained and illness slip should be honoured by the Court, but, further submitted that the engagement of the second counsel on behalf the same party should only be done with the consent of the earlier counsel, and where such consent was not taken, the engagement of the second counsel, by necessary implication, would revoke the vakalatnama of the earlier counsel, in which event, the illness slip sent by the earlier counsel, should be ignored by the Court.
Shri Y.K. Saxena, the learned counsel for the petitioner vehemently submitted that the time has now come when the illness slip should be ignored, and once the case was listed on the board, it should not be adjourned on account of an illness slip being sent by an Advocate unless there was some extenuating factor which compelled the Court to adjourn the case. The learned counsel submitted that in any case, when two counsels are appearing for the same party, the case should not be adjourned at the instance of the illness slip of one counsel, especially when there was another counsel, who was competent to argue, and whose instructions had not been withdrawn.
Shri V.K. Rai, Advocate submitted that it was high time, the Court framed Rules to curb the misuse of the illness slip being sent by the Advocate and further submitted that on account of frequent misuse of the tradition of the Court, such Advocates should not be given any sympathy.
Traditions are not built on one day. This Court is more than 140 years old, and has built itself a rich tradition. Illness slip has been accepted by the Court since time immemorial and, till date, this tradition of accepting the illness slip is being maintained. The Court, however, notices that the use of illness slips is being misused by a large number of the Advocates for vested reasons. A common example of the misuse is that, on account of continuous illness slip being sent by an Advocate, the case gets adjourned, and on this basis, it allows the ex parte interim order to continue for days and months, and some times, for years. Eviction orders which has been stayed are not being vacated because illness slips is being sent by the counsel. Recovery proceedings are stayed and the case gets adjourned.
The tradition of this Court was considered by the Supreme Court in the case of Rais Ahmad Vs. State of U.P. & Ors., AIR 1999 SC 3080. The Supreme Court, itself, noticed the facility of illness slip being abused and misused by the Advocates. The Supreme Court held that the tradition of the Court in accepting illness slip, which has become a custom/practice of the Court, and which has been handed down from generation to generation, was being misused. The Supreme Court held:-
"10. "Traditions" of a Court are built upon the edifice of cooperation between Judges and lawyers over a period of years. "Traditions", are doctrines, customs, practices, beliefs and usages which are handed down from generation to generation. As pointed out earlier, one of the traditions of the Allahabad High Court, which is now more than 130 years old and has seen many generations of lawyers, is that a case would be adjourned on the "Illness Slip" of a counsel. This and other traditions of the Court bind the lawyers and Judges in a sacred relationship of mutual trust and understanding. The adjournment of a case on the "Illness Slip" reflects the Court's respect for the counsel and its consciousness that a lawyer or counsel, though an officer of the Court, is nevertheless a human being who can fall ill. It also reflects the faith and trust the lawyer has in the Court that the Court would, on his "illness slip", adjourn the case.
11. It is contended on behalf of the respondents that the facility of adjournment available to the counsel on the ground of "Illness Slip" is a facility which has been abused more often than not, so much so that interim orders once obtained have notoriously been found to have continued for a long time merely on the "illness slip" and, therefore, the facility of adjournment on this basis should be abolished so that the litigant whose counsel has fallen ill, may make alternative arrangement and the hearing of the case may not be affected. That may be true in rare cases and in that situation the Judges would not act upon the "Illness Slip" if it is found, from a mere look at the running order sheet, that the facility has been misused or abused. But, isolated examples would not be destructive of the noble tradition. Moreover, litigants in this country are generally poor (agriculturists) coming from rural areas or they are Govt. servants or workmen in an industrial establishment or the like and they cannot afford or manage the luxury of engaging another counsel. This privilege is available only to the Central or State Governments who not only have Standing Counsel but also standby counsel (panel lawyers) and, therefore, only the State counsel can dare plead for abolition of adjournment on "Illness Slip", which we hereby reject as absurd and inappropriate."
The procedure for sending an illness slip, which is being followed, as on date is, that an Advocate normally sends an information on a piece of paper, addressed to the Reader of the Court, praying that the Court may be informed that the counsel is unwell or ill, and that, the case listed may be passed over for that day. The Reader makes an endorsement on his Cause List, and when the case is called out, the Reader, at that stage, informs the Court about the illness of the counsel. As per the tradition of this Court, normally the case is passed over, unless for reasons, to be recorded, the Court chooses to ignore the illness slip.
Earlier, illness slip used to be recorded on the order sheet by the Reader of the Court, and if three illness slips were recorded, the Reader used to inform the Court, in which case, an order was passed by the Court directing the case to be listed peremptorily, but now, on account of pressure of work, this practice of recording the illness slip on the order sheet is no longer carried out by a majority of the Courts. The Reader is overburdened. He has no time to record the illness slips. There are other factors, which the Court does not wish to spell out.
There is another aspect to be considered. Till about two decades ago, a case, which was listed in the Cause List, was repeated on alternate days if the said case was adjourned or was not taken up on that day, and in this manner, the case used to remain on the cause list till such time an order was passed. But, now, if a case is adjourned on a particular date, there are chances that the case is de-listed and is not repeated, and if repeated, is listed only after two or three weeks, and in this manner, the hearing of a case gets delayed for oblique reasons. This results in the accumulation of pending cases.
The High Court has framed the Allahabad High Court Rules, 1952, which is commonly known as the Rules of the Court. Chapter VI, Rule 15 and Chapter VI, Rule 12 are two provisions, providing for an adjournment of a case. Under Chapter VI Rule 15, an Advocate can apply before the Chief Justice for adjournment of his case on account of various factors, including illness, and when such adjournment is granted by the Chief Justice, the cases of that counsel are adjourned for that period, and if during that period, a case does get listed in a Court, the said case is adjourned invariably by the Court.
But, where the Advocate suddenly takes ill, and has no time to apply for an adjournment before the Chief Justice, an oral mention is accepted in the Court when the Court begins it work for the day, and under Chapter VI, Rule 12, the illness slip sent on a piece of paper is accepted by the Court. For facility, the provision of Chapter VI, Rule 15 and Chapter VI Rule 12 of the Rules of the Court are quoted hereunder:-
"15. Advocate's application for postponement of his cases.- (1) The Chief Justice may on the application of an Advocate postpone his cases for such time as he may deem proper, if he is satisfied that such postponement is necessary on account of a marriage, death or illness or any other unavoidable or urgent reason.
(2) An application under this rule shall be accompanied by a list of cases desired to be postponed specifying the occasion or occasions, if any when any such case was previously postponed under this rule. It shall also indicate the cases in which the date of hearing has been fixed by a Bench. If any omission or inaccuracy in this regard is discovered in the application later. Or if any Advocate whose such application has been allowed is found to have appeared before any of the Benches of the Court or before any other Court or Tribunal except where the postponement has been ordered specially on ground of appearance before any particular Court or Tribunal, in any case, whether for orders, admission or hearing, the application for postponement of cases shall stand rejected automatically.
12. Court may order a case to stand out of its place or be adjourned on application- On an application made to it the Bench may for sufficient cause shown order any case-listed before it for hearing to stand out of its place in the Cause List or to be adjourned for such period as may be considered just. Where an adjournment for not more than three days is sought the application may be made orally. In considering whether there is sufficient cause any objection on behalf of the other party shall be taken into account.
A motion under this rule may be made as soon as the Bench begins its work for the day and shall not ordinarily be entertained if made at any other time:
Provided that no adjournment shall be granted under this rule unless there is sufficient work for the day."
Over the years, more than one counsel have started appearing on behalf of one party. At times, a litigant engages more than one counsel. Full liberty is given to a litigant to engage as many counsels as he desires. Section 24 of the Advocates Act, 1961 provides the criteria of a person to be admitted as an Advocate on a State roll. The person who fulfils the requirement of Section 24 for enrolment, becomes entitled to be enrolled as an Advocate, and on such enrolment, he acquires a right to practise in a Court of law. Having acquired a right to practice, he incurs certain obligations in regard to his conduct as a member of the legal profession.
In Indian Council of Legal Aid and Advice etc.etc. Vs. Bar Council of India & Anr., AIR 1995 SC 691, the Supreme Court explained the duties which an Advocate was required to follow in a Court of law. The Supreme Court held:
"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."
Section 49 of the Advocates Act confers power on the Bar Council of India to make rules for discharging its functions under the Act. Section 49 (1) (c) of the Act provides that the Bar Council will frame rules with regard to the standard of professional conduct and etiquette to be observed by the Advocates. In exercise of this power, the Bar Council of India has framed rules known as "Bar Council of India Rules", which has also been published in the Gazette of India. Chapter II of Part VI of the Bar Council of India Rules relates to rules governing Advocates, especially, towards standard of professional conduct and etiquettes. Rule 39 provides for the contingency where more than two counsels may appear on behalf of the same party. For facility, Rule 39 of the Rules, as framed by the Bar Council of India, is quoted hereunder.
"39. An advocate shall not enter appearance in any case in which there is already a vakalat or memo of appearance filed by an advocate engaged for a party except with his consent; in case such consent is not produced he shall apply to the Court stating reasons why the said consent could not be produced and he shall appear only after obtaining the permission of the Court."
A perusal of the aforesaid Rule indicates that an Advocate shall not enter appearance when there is already an Advocate appearing on behalf of the party, except with his consent, and where such consent is not produced, the subsequent Advocate is required to obtain permission from the Court. Infringement of this rule entails disciplinary action against the Advocate under the Advocates Act and rules framed by the Bar Council. The Bar Council has framed rules to punish such Advocates, who misconduct themselves. The general superintendence of ethics and etiquettes of the Advocates is the responsibility of the Bar Council, and the Bar Council has been charged with the duty to punish their members for misconduct.
However, the Court is constraint to observe that this rule is being misused with impunity and no effort is being made by the Bar Council to curb this mal practice, and one of the reasons is, that no complaint is made before the Bar Council. On the other hand, the Court is saddled with this malaise, and gets over burdened with the frequent delay caused in the disposal of the case ,on account of illness slip being sent by more than one counsel.
In re Sanjiv Datta, Deputy Secretary, Ministry of Information and Broadcasting, New Delhi & Ors., (1995) 3 SCC 619, the Supreme Court pointed out that this service which the members of the profession are rendering by their absence (emphasis is mine), when the matters are called out, would wreck the system from within before it is wrecked from outside, if corrective measures are not taken in time. These observations of the Supreme Court is like a prophecy coming true.
In Ex. Capt. Harish Uppal Vs. Union of India & Anr., AIR 2003 SC 739, the Supreme Court held that an Advocate is an officer of the Court and enjoys a high status in society and has an obligation and duty to ensure smooth functioning of the Court. The Supreme Court held that an Advocate cannot disrupt the proceedings of the Court, nor can it jeopardise the interest of his client. This observation was made by the Supreme court in relation to the advocates going on strike and putting the judicial system to ransom.
Continuous illness slips sent by the Advocates amounts to a misuse of the process of the Court, and the indulgence granted by the Court. By the process of sending continuous illness slip, a fetter is placed in the smooth running of the administration of law, which gets threatened. Courts are under no obligation to adjourn a matter because an Advocate has sent an illness slip. On the contrary, it is the duty of the Court to go on with the matter with the cases listed on the Cause List even in the absence of the Advocate. But, on account of the rich tradition, this Court has been honouring the illness slips being sent by the advocates. But, now, on account of the blatant misuse of the illness slip, the time has come for the High Court to frame a specific rule with regard to the control of conduct of the Advocates in Court, which the High Court can frame and which is within its domain as per Section 34 of the Advocates Act. The Court finds that the High Court has framed certain rules under Section 34 of the Advocates Act, which are incorporated under Part VI Chapter XXIV of the Rules of the Court. Section 34 of the Advocates Act gives power to the High Court to frame rules, including rules regarding conditions on which a person, including an Advocate, can practise in the High Court. An Advocate's right to appear in a Court is not an absolute right, but is hedged by such conditions, as laid down by the Court. What happens inside the Court can always be regulated by the Court. The Supreme Court in Common Cause, a Registered Society & Ors. Vs. Union of India & Ors., (2006) 9 SCC 295 held:
"...The right to practise, no doubt, is the genus of which the right to appear and conduct cases in the court may be a specie. But the right to appear and conduct cases in the court is a matter on which the court must and does have major supervisory and controlling power. Hence courts cannot be and are not divested of control or supervision of conduct in court merely because it may involve the right of an advocate. A rule can stipulate that a person who has committed contempt of court or has behaved unprofessionally and in an unbecoming manner will not have the right to continue to appear and plead and conduct cases in courts..."
In a similar fashion, the Court can impose an embargo for not accepting an illness slip where continuous illness slip is being sent, or where two Advocates are appearing for the same party and one of the Advocates sends an illness slip. The Court can easily ignore an illness slip since another Advocate is representing the same party and who can easily address the Court.
In the light of the aforesaid, it is clear that in spite of Rule 39 being framed by the Bar Council of India, the said rule is being violated with impunity by the members of the legal profession. No consent is taken by the Advocate from the earlier counsel, nor does he take permission from the Court to appear and address the Court. Violation of this rule entails disciplinary action against the Advocate, but, the Bar Council ignores this Rule, as a result of which, the lawyers/Advocates are filing their appearances in complete disregard to the mandatory provision. This Court in R.N. Singh Vs. State of U.P. & Ors., 1988 All C.J. 48 had noticed the provision of Rule 39 framed by the Bar Council of India and held that a counsel, not taking consent from the previous counsel already appearing, commits an error and violates Rule 39 of the Bar Council Rules.
In view of the aforesaid, the Court finds that the Rules of the Court needs to be amended and a provision with regard to the misuse of the illness slips is required to be incorporated under Chapter VI of the Rules of the Court. Further, rules relating to the conduct and etiquette of the Advocate appearing in the Court needs to be incorporated under Chapter XXIV of the Rules of the Court.
Consequently, in the light of the aforesaid, this vexed issue of misuse of illness slip is being disposed of with the following directions:-
1.The High Court is required to frame Rules of conduct for Advocates under Section 34 of the Advocates Act by appropriately amending Chapter XXIV of the Rules of the Court.
2.The High Court is directed to make provisions with regard to the misuse of illness slip by making appropriate amendment in Chapter VI of the Rules of the Court.
3.Rules relating to Advocate on Record, as framed by the Supreme Court of India should also be framed by the High Court, by which, one Advocate is made answerable and responsible for receiving affidavit, counter affidavit, rejoinder affidavit, notices, etc. and would also be made answerable to the Court and adjournment could only be sought by that counsel in the Court.
4.So long as necessary amendments are not incorporated in the Rules of the Court, the tradition, which has been built brick by brick over the last 140 years, will continue and will be honoured by the Court as far as possible with slight modifications, namely,
(a) Illness slip are to be recorded by the Reader of the Court, whether the case is taken up or not, and this has to be followed scrupulously. The Registrar General is directed to issue necessary directions to all the Readers of the Court for compliance.
(b) When an illness slip is sent, it should be honoured by the Court unless the Court records reasons for ignoring the illness slip. This is in consonance with the tradition of the Court.
(c) Upon three illness slips being recorded, the Reader of the Court will inform the Bench, and then, it would be open to the discretion of the Court to direct the said case to be listed peremptorily, or to ignore or honour the illness slip, as the case may be.
(d) Once a case is listed peremptorily, the case would not be adjourned on the ground of illness slip of the counsel, on whose instance, the case was adjourned earlier and was directed to be listed peremptorily.
(e) On the question of engagement of more than two counsels on behalf of a litigant, it is open to the litigant to engage as many counsel as he or she likes, but whenever a second counsel is engaged, the said counsel is required to take consent in writing from the earlier counsel, failing which, the said counsel is required to take permission from the Court.
(f) In addition to the above, when a vakalatnama is filed by the second counsel, the counsel is also required to file an affidavit of his client indicating as to which counsel would now argue the matter, even though, the vakalatnama of the earlier counsel has not been withdrawn. This is essential because a litigant may engage as many counsel as he likes, but the Court places a fetter, namely, that only one counsel can address the Court. Consequently, an affidavit to this effect, is essential.
These directions will be effective and would be followed from 1st of May, 2009 onwards and will continue till such time appropriate amendments are made in the Rules of the Court.
Certified copy of this order shall be placed before the Registrar General within three weeks from today, who is directed to take follow up action by placing it before the Hon'ble Chief Justice for issuing necessary directions for making necessary amendments in the Rules of the Court, as suggested by the Court. The Registrar General is further directed to print a gist of this order and directions of the Court in the Cause List on several days, so that the members of the Bar are made aware of the directions, which will come in force from 1st of May, 2009 onwards.
Certified copy of this order shall also be sent by the Registrar General to the President/Secretary of the two Bar Associations with a request to display the said order on their Notice Board for information to its members.
Before parting, the Court appreciates the submissions raised by various members of the Bar, and also appreciates the effort made by the Law Clerk, Ms. Aparna Srivastava, attached to the Court, for the extensive research done by her.
Put up this matter tomorrow for hearing on the merits of the case.
03.03.2009
AKSI
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