Thursday, March 11, 2010

Delhi High Court exposes how lawyers do ‘business’ in India

The following recent judgment of Justice Dhingra of Delhi HC exposes how lawyers make flimsy excuses to delay cases and put both litigants and witnesses to hardship.  But the larger question is that if the lawyers are doing it, then why are not the judges putting exemplary costs to discourage such behaviour, as done in this case by having petitioner pay the respondent Rs 25,000.

The important parts are made bold in judgment below:


CM (M) No. 496/2009    Smt. Rampyari & Ors.v. Ms. Kamlesh

Date of Reserve: 2nd
February, 2010
Date of Order: 9th
March, 2010
CM (M) No. 496/2009 & CM No. 7663/2009
%                     09.03.2010
  Smt. Rampyari & Ors.        ... Petitioners
        Through: Mr. Rakesh Prabhakar, Advocate
  Ms. Kamlesh            ... Respondent
        Through: Respondent-in-person

1. Whether reporters of local papers may be allowed to see the judgment?  Yes.
2. To be referred to the reporter or not?            Yes.
3. Whether judgment should be reported in Digest?        Yes.
     By this petition, the petitioner has assailed an order dated 25th
March, 2009 whereby an application of the petitioner for recalling witness PW-2 for cross examination, whose cross examination was closed on 29th
September, 2008 by the trial Court, was dismissed
.  The application for recalling was made on 6th  December,2008.  The trial Court after observing the history and manner in which the petitioners
impeded the trial, found no force in the application and dismissed the application. 

2.    This case represents a typical example how the trial goes on in Indian
Courts and how the Courts are taken for granted.
Issues in this case were framed on
3rd August, 2006 and thereafter plaintiff’s witnesses appeared for their testimony on
21st  February, 2007,  when  the  cross examination of the witnesses  was to be
conducted.  An application was made on behalf of the petitioner stating that  their
Counsel had suddenly fallen ill and adjournment was sought, which was allowed.
Next date for cross examination was fixed as 16th
April, 2007.  On 16th  April, 2007
when witness appeared for cross examination an application was made on behalf of
defendant no.8 stating that there was a death in the family of the petitioners’ Counsel
case be adjourned. 
The case was then adjourned for 17th
  July, 2007 for cross examination of the plaintiff.  On 17th
July, 2007 a proxy Counsel appeared and stated
that the petitioners’ Counsel was down with fever and adjournment was sought which
CM (M) No. 496/2009    Smt. Rampyari & Ors.v. Ms. Kamlesh    was  granted
and case was listed for 17th   September, 2007.  On 17th  September,
2007 again  a  prayer was made to the  Court stated that  the  Counsel for the
petitioners  was down with fever and adjournment was sought.  The  trial  Court
observed that there was no written request made on behalf of the Counsel for the
petitioners.  The same excuse was being taken again and again so, the Court closed
the cross examination of PW-1.
  Again  an  application was made on  behalf of the
petitioners  for recalling PW-1 for cross examination.  The application was allowed
vide order dated 25th  April, 2008 subject to cost of Rs.500/-
and the case was listed
for remaining cross examination of PW-1 on 3rd
July, 2008. On 3rd  July, 2008 again,
Counsel for the petitioner made a prayer for adjournment on the ground that he had
not gone through the relevant record and could not prepare the cross examination.
This adjournment was allowed subject to cost of Rs.1,000/-  and a last opportunity
was given.
The matter was now listed on 18th  August, 2008, and the Counsel for the
petitioners  again  did not appear and it was told that he was busy in High Court.
Since it was the last opportunity and the matter had already been passed over twice,
the Court refused to give further pass over or adjournment.
  The other Counsel Mr.
B.N.Sharma who had appeared for the petitioners, cross examined the witness and
this is how PW-1 was treated and cross examined in the Court.  The matter was then
listed for cross examination of other witnesses on 29th  September, 2008.  The
witnesses appeared and were present in the Court since morning.  The counsel for
the petitioners again did not turn up and the case was passed over twice and at the
third call still when the counsel for the petitioner was not available,  the Court closed
the cross examination of this witnesses.
  The application for recalling them was made
after 2 ½ months and was dismissed by the trial Court by a speaking order noting the
history of the case.  The present petition has been filed by the petitioner for recalling
the order. 

3.    I consider that the manner in which petitioners had  impeded  the trial
and the manner in which  the treatment  was  given to the witnesses,  the petition
deserves to be dismissed with heavy costs.  It only seems that the petitioners had
taken the Courts for granted.  It is considered as if Courts exist for providing business
to the advocates and if advocates are busy in High Court or in other Courts and
choose not to appear for false and lame excuses, the witnesses are to suffer and the
system has to suffer,  the party has to suffer but the advocates’ business should not
suffer.  I consider this attitude towards the litigation and courts must be brought to an
end it must be made clear that the Courts do not exist for providing business to the
.  They exist for adjudicating the disputes between the parties and the
CM (M) No. 496/2009    Smt. Rampyari & Ors.v. Ms. Kamlesh witnesses or litigants cannot be given shabby treatment by taking adjournment after
adjournment  in the Courts as if they had done something wrong by bringing suit to
the court and they are made to appear in the Court 20 times when the evidence can
be over in one hearing. 

    This petition is hereby dismissed with cost of Rs.25,000/- to be paid to
the respondent. 
March 09, 2010         SHIV NARAYAN DHINGRA, J.

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