Bombay High Court
Rajendra Vinayak Mehta vs Mrs.Veena Jaswant Shah 2. Jaswant ... on 28 April, 2016
Author: S.C. Dharmadhikari
Bench: S.C. Dharmadhikari, G.S. Patel
APP25.11.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 25 OF 2011
WITH
CRIMINAL APPLICATION NO. 426 OF 2010
SPEAKING TO THE MINUTES OF ORDER DATED
02.09.2010
WITH
CRIMINAL APPLICATION NO. 399 OF 2010
SPEAKING TO THE MINUTES OF ORDER DATED
02.09.2010
WITH
CRIMINAL APPLCATION NO.84 OF 2008
WITH
CRIMINAL APPLICATION NO. 125 OF 2008
WITH
CRIMINAL APPLICATION NO.147 OF 2010
WITH
CRIMINAL WRIT PETITION NO. 1468 OF 2003,
WITH
CHAMBER SUMMONS NO. 57 OF 2010
IN
SRP 1/27
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APP25.11.doc
MISC. PETITION NO. 54 (LODG NO.306) OF 2010
IN
TESTAMENTARY PETITION NO. 237 OF 2009.
WITH
TESTAMENTARY PETITION NO. 282 OF 2010
1. Mr. Rajendra Vinayak Mehta, Adult, a ]
senior U.S. Citizen, aged 68, resident of 2035,]
Meadow Lane Drive, Easton, PA - 18040, ]
presently in Mumbai and through His Power ]
of Attorney, Ms. Smita Ambalal Patel, having ]
her office at 147, M.G.Road, 2nd floor, Fort, ]
Mumbai - 400 001. ig ]
2. Mr. Deepak Vinayak Mehta, Adult, a ]
senior U.S. Citizen, aged 66, residing at 118 ]
South Galaxy Drive, Chandler, AX 85226,PASHA SYED REHMAT
18-MAR-63
REGR HIGH COURT APPELLATE SIDE BOMBAY
PAO MUMBAI
05/2014
03/2015
02/2015
07/2014
11/2014
04/2014
06/2014
10/2014
09/2014
08/2014
12/2014
01/2015
8000
8000
8000
8000
8000
8000
8000
SRP 2/27
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APP25.11.doc
8000
8000
8000
8000
8000
AJMH/24721
2014-2015
PASHA SYED REHMAT
AJMH/24721
28/04/2016
NIL
NIL
1032552
96000
94356
]
U.S.A. ig ] ... Appellants
Versus
Mrs. Veena Jaswant Shah ]
Flat No.9, 2nd floor, Hari Vijay Cooperative ]
Housing Society Limited, Shahid Bhagat ]
Singh Road, Vile Parle (W), Mumbai-400058 ] ... Respondent
Ms. Smita Patel, Constituted Attorney for the Appellants
present in person.
Mr. B.K. Barve with Mr. Sandeep B. Barve and Ms. Archana Lad
i/b M/s. B.K. Barve & Co. for the Respondent.
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, JJ.
Reserved on : 3 rd MARCH, 2016 Pronounced on : 28 th APRIL, 2016 JUDGMENT . : [Per S.C. Dharmadhikari, J.]
1. This appeal under Clause 15 of the Letters Patent is SRP 3/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc directed against an order of a learned single Judge dated 2 nd September, 2010, in Criminal Application No.84 of 2008 with Criminal Application No.147 of 2010 with Criminal Application No. 125 of 2008 in Criminal Writ Petition No. 1468 of 2003, alongwith Misc. Petition (Lodg) No.306 of 2010 in Testamentary Petition No. 237 of 2009. The appellants before us are original respondent Nos.1 and 2. They are both senior citizens. The respondent Nos.3 and 4 are the original respondents.
2. It is the case of the appellants that they had presented an application on an affidavit dated 5th April 2010 to the then Hon'ble the Chief Justice to take immediate measures to control grant of ex-parte orders, take immediate corrective measures and provide speedy justice to the appellants and consolidate three matters to be heard together, namely, Criminal Writ Petition No.1468 of 2003 of the Appellate Side, Misc. Petition (Lodg) No.306 of 2010 in Testamentary Petition No. 237 of 2009 on the Original Side and Testamentary Petition No. 282 of 2010 on the Original Side. All the three matters were filed by SRP 4/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc the original respondent No.1 to this appeal and others. An order was passed on 24th August, 2010, clubbing these three matters and assigning them to the learned single Judge. On 30 th August, 2010, all three matters were listed on the Board of the learned single Judge for directions. They were adjourned to 1 st September, 2010, with a direction to the Constituted Attorney Ms. Smita Patel to satisfy the Court about her authority to argue the matter. It is the appellants' case that they had appointed her as their Constituted Attorney. On that date, namely, on 1st September, 2010, she placed before the Court several authorities in support of her submission that she has been duly authorized in law by these appellants. It is then claimed that on 2nd September, 2010, the impugned order has been passed and we are concerned with the correctness and legality of this order.
3. The sequence of events and the essential controversy can very well be appreciated if one reproduces an order passed by this Court on 30th September, 2013, in these very proceedings :
"2. The facts of the case, briefly stated are as under:-SRP 5/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 :::
APP25.11.doc 2.1 Mr. Rajendra Vinayak Mehta was granted a probate of the Will dated 7 August 2995 executed by Shrimati Vinayak Mehta, as per order dated 4 September 2009 of the learned single Judge in Probate Petition No.237 of 2009.
2.2 Mrs.Veena Jaswant Shah and others filed Misc.Petition (Testamentary) No.54 of 2010 (Initially Misc.Petition (L) No.306 of 2010) for revocation of the above probate on the ground that Mr.Rajendra Vinayak Mehta had played a fraud on the Court by concealing the Will dated 14 May 1992 executed by mother/parents of Mr.Rajendra Vinayak Mehta in favour of Mrs.Veena Jaswant Shah.
2.3 Mr.Rajendra Vinayak Mehta and his Constituted Attorney Ms.Smita Patel filed a criminal complaint against Mrs.Veena Jaswant Shah, her husband Mr.Jaswant Shah and their son Mr.Sameer Shah alleging that the accused had forged the Will dated 14 May 1992 for obtaining the flat in question and also forged signatures to obtain Rs.16 lacs and odd standing in the name of parents of Mr.Rajendra Vinayak Mehta. The Metropolitan Magistrate, Mumbai ordered an investigation under section 202 of Cr.P.C. and after police submitting the report of inquiry on 25 September 2002, the Metropolitan Magistrate took cognizance of the report and issued process against the accused, Mrs.Veena Jaswant Shah, aged 74 years, Mr.Jaswant Shah, aged 78 years and their son Mr.Sameer Shah, aged 44 years. All the three accused filed Criminal Writ Petition No.1468 of 2003 challenging the order of the Metropolitan Magistrate issuing process.
3. On 2 September 2010, learned Single Judge (Coram: Hon'ble Mrs.Justice Roshan Dalvi) passed three separate orders:
(A) By the first order dated 2 September 2010, learned Single Judge dismissed Criminal Writ Petition No.1468 of 2003 and directed the continuance of criminal investigation in accordance with law.
(B) By the second order dated 2 September 2010, SRP 6/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc learned Single Judge stayed the hearing of the Misc.Petition (Testamentary) No.54 of 2010, which was filed for revocation of the probate sine-die till disposal of the criminal complaint filed by Mr.Rajendra Vinayak Mehta against Smt.Veena Shah and ors.
Appeal No.311 of 2011 (initially Appeal (L) No. 343 of 2012) filed by Mr.Rajendra Mehta against the above order has been allowed by another Division Bench by judgment dated 5 April 2013. The Division Bench has set aside the above order dated 2 September 2010 and has directed that the application for probate shall be heard and decided in accordance with law, as expeditiously as possible.
(C) Learned Single Judge passed the third order dated 2 September 2010, in respect of controversy whether Ms.Smita Patel has a right to represent Mr.Rajendra Vinayak Mehta and his brother in the revocation proceedings/criminal proceedings. Dispute in the above proceedings is about the property left by the parents of Mr.Rajendra Vinayak Mehta and his brother Mr.Deepak Mehta. Mr.Deepak Mehta's wife is stated to be cousin of Ms.Smita Patil ( who is not a lawyer), in whose favour the two brothers, settled in USA, have executed separate Power of Attorney. Ms.Smita Patel, the Constituted Attorney, claims to know family for last 20 years and claims to have the confidence of the two brothers, who are settled in USA. Learned Single Judge held that Ms.Smita Patel should not be allowed to seek the right of audience as Constituted Attorney. This order is challenged in Appeal No.25 of 2011.
4. The discussion hereinafter is with reference to the said last order dated 2 September 2010. Learned Single Judge (Hon'ble Mrs.Justice Roshan Dalvi) considered the provisions of C.P.C., Cr.P.C. , Advocates Act, judgments of the Supreme Court, Bombay High and other High Courts and after culling out principles from those decisions, referred to the conduct of Constituted Attorney in the other proceedings including the proceedings covered by the decision of the Supreme Court in Vipin Pandya Vs. Smita Ambalal Patel (2007) 6 SCC 750 and proceedings before the Co-operative Court, and concluded:
SRP 7/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 :::APP25.11.doc "This Court would, therefore, do well in not exercising the discretion in favour of the Constituted Attorney (Ms.Smita Patel) to represent them (Mr.Rajendra Vinayak Mehta and his brother) as their pleader and to seek the right of audience."
This order was passed in Criminal Application No.84 of 2010 as well as in notices of motion in the revocation petition.
4A. The learned Single Judge referred to the conduct of Constituted Attorney Ms.Smita Patel in paragraph 23 of the aforesaid order dated 2 September 2010 in following terms:
"23. Mr. Madon, Sr. Counsel on behalf of the Respondents drew my attention to the judgment of the Supreme Court in the case of Vipin Pandya Vs. Smita Ambalal Patel (2007) 6 S.C.C. 750 showing strictures passed against the Constituted Attorney and exemplary costs of Rs.5 lakhs imposed upon her not upon the demerits of her case, but upon her conduct of the proceedings. It would do well to reproduce the observations of the Court with regard to the impeccability or otherwise of her behaviour, which runs thus:
21. It is indeed disgusting to see a litigant attempting to intimidate the Supreme Court and two of its Judges in such a crude and obnoxious manner.
22. A resume of the facts clearly reveals the incorrigible and recalcitrant attitude of the respondent. We could perhaps condone her errant conduct if she was merely a highly strung and impetuous lady oversensitive to her case and unaware of the nuances of the law and the decorum to be maintained in court but we are satisfied that no ignorance nor mental imbalance is discernible SRP 8/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc which can be pleaded in extenuation of her behaviour. The record reveals that she is well aware of the conduct of the judicial process and the law and facts relating to her case, but she has evolved a strategy which has thus far kept her in good stead as it has been designed to filibuster the proceedings in case she finds that they are not taking the direction that she has chalked out and that despite her conviction for contempt of court on two occasions and numerous admonitions and warnings notwithstanding, she has remained unfazed and has in a most unbecoming manner relentlessly and ruthlessly pursued the litigation. We also quote yet again from the judgment of the Division bench dated 16112000:
"It may also be possible that she has lost her mental balance because of the said facts. (Though, considering the manner in which the contemner coolly argued the appeal before us, we are not inclined to believe that she has really lost her mental balance)"
We completely endorse this observation."
Mr. Madon also drew my attention to the order of the Cooperative Court at Bombay in Misc.
Application No.222/2009 in Dispute No.12/2007 between the Respondents and the Secretary of the Society which was a party to that dispute showing how the fracas ensued resulting in the arrest of the Constituted Attorney of the Respondents to bring peace in the Court room.
5. Mr. Rajendra Vinayak Mehta has filed Appeal No.25 of 2011 challenging the said last order dated 2 September 2010 in Criminal Application No.84 of 2010 and other connected matters. It was contended that the SRP 9/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc signed impugned order dated 2 September 2010 passed in Criminal Application No.84 of 2010 and other connected matters was not on record when inspection of the record was taken by the appellants Mr.Rajendra Vinayak Mehta and his constituted attorney Ms.Smita Patel on 11 October 2010. It was alleged that at that time only unsigned copy of the impugned order dated 2 September 2010 running into twelve pages was on record. But the unsigned order was uploaded, hence the impugned order was a nonexistent order."
4. We are not concerned with the other controversy which is concluded by this order. Suffice it to indicate that the Division Bench passing the above order in this appeal noted that on 30 th March 2012, the learned senior counsel appearing on behalf of the respondents made a concession. That concession is that in so far as the present appeal is concerned, the respondents have no objection if the same is allowed to be argued by the Constituted Attorney of the appellant. In view thereof, the Division Bench permitted Ms. Smita Patel, Power of Attorney holder before us to argue this appeal.
5. Accordingly, we have allowed her to argue this appeal.
Mr. Barve appearing on behalf of the respondents stated that the respondents stand by their concession and have no objection to the Constituted Attorney / Power of Attorney SRP 10/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc holder addressing us.
6. Though not an advocate herself, the Power of Attorney holder has taken us through innumerous documents, papers and proceedings. We are not concerned with the merits of the pending proceedings before the learned single Judge. We are only concerned with the legality and validity of the order under appeal.
7. In that regard, the primary contention of the appellants is that once the Power of Attorney holder has been authorised and to act and appear on their behalf, then, the Court could not have curtailed the said power and authority of the Constituted Attorney or the Power of Attorney holder in the manner done.
It is not open to then probe as to how much authority is conferred and to what extent. It is submitted that the learned single Judge had no jurisdiction to pass the impugned order.
She could not have restrained the Power of Attorney holder from addressing the Court. There is no provision in law compelling a litigant to engage an advocate. Merely because some litigant chooses either to conduct his or her case himself / SRP 11/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc herself, or authorises somebody on their behalf and if that course is legally permissible, then, the Court cannot insist on such parties engaging advocates or appointing any advocates for them. The Power of Attorney holder was critical of the findings recorded by the learned single Judge. She submits that the learned Judge was to a great extent influenced by her alleged misconduct and that is how she has arrived at the conclusion, but that is not supportable in law. Our attention is invited to the observations in that regard. It is submitted that the Power of Attorney holder is not required to be a qualified lawyer. It is submitted that from paragraph 4 onwards upto 6, the learned Judge has referred to the legal provisions but has erroneously concluded that the litigant has a choice to appear himself or herself or through any person of his confidence who may be appointed to so appear and plead on his behalf provided, however, that that person is qualified to appear. The learned Judge has unnecessarily brought in the qualifications and required to be fulfilled by an advocate. Those cannot be equated and the erroneous conclusion that the recognised advocates are, therefore, essentially qualified lawyers has been arrived at SRP 12/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc in paragraph 7. There is no requirement of minimal academic qualifications to be obtained by a Constituted Attorney and the learned Judge in that regard has not referred to any provision of Act or Rule. According to the Power of Attorney holder, the learned Judge has referred to certain judgments, but those are not dealing with the controversy. The controversy here is whether the learned Judge was correct in holding that the present Power of Attorney holder was unfit to appear only because she is not an advocate or merely because of certain general observations, viz., the ones which are to be found in paragraphs 14 to 19 of the impugned order.
8. The Power of Attorney holder submits that she has relied upon several judgments and they have been erroneously distinguished or brushed aside by the learned single Judge. The Power of Attorney holder then criticized the findings in paragraphs 22 and 23 of the impugned order to submit that none of them have any relevance to the issue raised by the learned Judge herself. Thus, without indicating any specific wrongful act or a incident of indecent or reprehensible SRP 13/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc behaviour, the learned Judge could not have concluded that the conduct of the Power of Attorney holder is such that no discretion should be exercised in her favour. The learned Judge also erred in not upholding the Power of Attorney holder's right of audience sought on behalf of the principal or the donor. She was, therefore, equally critical of the observations in paragraph 24 of the impugned order. Thus, the learned Judge has wrongfully and erroneously rejected the application seeking the Court's intervention so as to permit a right of audience by a Constituted Attorney on the appellants' behalf. The Power of Attorney holder submits that so long as the Power of Attorney was valid and subsisting, the learned Judge could not have prevented her from appearing and pleading the case on behalf of the appellants. For these reasons, she would submit that the order be set aside.
9. On the other hand, Mr. B.K. Barve submits that conceding the right of audience in the Power of Attorney holder as far as the present appeal is concerned would not mean that the respondents do not object to her appearance or have conceded SRP 14/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc to it, much less acquiesced in the same. He would submit that the conduct of the Power of Attorney holder was such that the learned Judge even otherwise was justified in terminating the Power of Attorney. For these reasons, he would submit that on broad principles, the course adopted by the learned Judge is correct.
10. Mr. Barve also relied upon the order of another learned single Judge of this Court (M.L. Tahiliani, J.) dated 17 th September 2014, in Criminal Application No. 7 of 2014 in Criminal Application No.1196 of 2013. He would submit that the Constituted Attorney has not been allowed to appear in the proceedings as the prayer to allow appearance by Power of Attorney holder has been rejected. The learned Judge has also set aside the order dated 24th December 2013, of this very Court and held that it was obtained by suppression of facts.
Then, reliance is placed upon the order of a learned single Judge of this Court who, on one occasion, had removed certain matters pertaining to the above parties in the light of the conduct of the Power of Attorney holder. For these reasons, he SRP 15/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc would submit that the impugned order be sustained.
11. We have carefully considered the submissions of both sides. We have perused the bulky record. We have clarified to the Power of Attorney holder that in this appeal we are concerned with a limited issue and that is with regard to the correctness of the order dated 2nd September, 2010, terminating the Power of Attorney in favour of the appellant -
Ms. Smita Patel. We are not concerned with the other orders passed from time to time in the proceedings. For us and when the Power of Attorney holder herself terms this as "an open and shut" case, the issue is extremely narrow and limited.
12. The law has, as far as appearance of parties is concerned, been more or less crystallized in Order III of the Code of Civil Procedure, 1908. Order III is titled as Recognized Agents and Pleaders. Since the learned Judge has referred to Order III Rule 1 and 2 we reproduce them.
"1. Appearances, etc., may be in person, by recognized agent or by pleader. - Any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such SRP 16/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf;
Provided that any such appearance shall, if the Court so directs, be made by the party in person.
2. Recognized agents. - The recognized agents of parties by whom such appearances, applications and acts may be done are -
(a) persons holding powers-of-attorney, authorising them to make and do such appearances, applications and acts on behalf of such parties.
(b) persons carrying on trade or business for an n the names of parties, non resident within the local limits of the jurisdiction of the Court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, application and acts."
13. A bare perusal of Order III would indicate that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader. The words initially appearing as "duly appointed to act" are now substituted by Act 22 of 1926 with the words "appearing, applying or acting, as the case may be". Thus, if there is a provision otherwise, an SRP 17/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc appearance, application or act in Court required or authorized by law to be made or done by a party in such Court may be by the party in person or by his recognized agent. The word "recognized agent" has not been defined in the Code of Civil Procedure, 1908, though the word "pleader" is defined in section 2, clause 15. Therefore, the word "recognized agent"
takes its colour from the ordinary and plain meaning of that word or term. The word "recognized agent" has been understood as formal acknowledgment conveying approval or sanction. It is not mere acquiescence but something more. It shows that a person, entity or thing has a particular status. The word "agent" as understood in law is a fiduciary relationship created by expression or implied contract or by law in which one party may act on behalf of another and bind that other party by words or actions. It is a device to enable a person through the services of another to represent him. That is a contractual agreement by which one party agrees to represent another, the agent becoming as binding in the affairs of the other as if the latter had acted on his or her behalf [See Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, Reprint 2007].SRP 18/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 :::
APP25.11.doc
14. Once the concept is understood as above, then we must find any provision by which the Court can terminate the agency and refuse to permit the Power of Attorney holder to act and appear in certain legal proceedings. In the present case, the controversy is not about the extent of the authority in the Power of Attorney holder, but whether generally the Court can prohibit appearance by the Power of Attorney holder. The learned single Judge, with great respect, has without adverting to any specific act of infamous or indecent conduct of the Power of Attorney holder, as a broad and sweeping measure, terminated the agency. That we do not find to be permissible.
If the conduct of any party before a Court is such that it becomes impossible for the Court to conduct the proceedings before it in an orderly and decent manner consistent with its dignity and status, then none can dispute the Court's power to prevent or stop any party or litigant from addressing the Court in such manner. The Court can take suitable action as permitted in law so as not only to deplore the conduct but to prevent its recurrence and persistence. That power in the Court is inherent as all Courts are meant to dispense justice. In SRP 19/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc the present case, we do not find anything in order III Rule 1 and 2 which would permit termination of the agency and displacement of the Power of Attorney holder or recognized agent without any material of the above nature. The learned Judge has not referred to any materials as is apparent from the record. The reference that the learned Judge makes to the judgment of the Hon'ble Supreme Court reported in the case of Vipin Pandya Vs. Smita Ambalal Patel (2007) 6 SCC 750, has absolutely no application. It is a behaviour of the respondent -
Smita Ambalal Patel in the Court which compelled the Supreme Court to take a very serious view and impose exemplary costs on her. The Hon'ble Supreme Court cautioned all concerned about growing tendency on the part of some litigants to misuse the latitude granted to them and to deliberately create a situation whereby the function of the Court becomes an impossibility. It is stultifying the entire judicial process. The Hon'ble Supreme Court found that consistently the conduct and over three days before the Hon'ble Supreme Court of this very Power of Attorney holder was such that she did not heed to any counsel or advice from the Court. She insisted on arguing the SRP 20/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc matter in her own way and sometimes she crossed the limits of decency. She did not keep her arguments within the bounds.
She did not address the Court as desired by it on merits. The Court has recorded as to how at times she was agitated and shouted back at the Court. Therefore, the Court was constrained to close the arguments.
15. It is this conduct and pattern emerging from it for continuously three days that led the Court to pass an order not only imposing exemplary costs but concluding as under :
"21. It is indeed disgusting to see a litigant attempting to intimidate the Supreme Court and two of its Judges in such a crude and obnoxious manner.
22. A resume the facts clearly reveal the incorrigible and recalcitrant attitude of the respondent. We could perhaps condone her errant conduct if she was merely a highly strung and impetuous lady over-sensitive to her case and unaware of the nuances of the law and the decorum to be maintained in Court but we are satisfied that no ignorance nor mental imbalance is discernible which can be pleaded in extenuation of her behaviour. The record reveals that she is well aware of the conduct of the judicial process and the law and facts relating to her case, but she has evolved a strategy which has thus far kept her in good stead as it has been designed to filibuster the proceedings in case she finds that they are not taking the direction that she has chalked out and that despite her conviction for contempt of court on two occasions and numerous admonitions and warnings notwithstanding, she has remained unfazed and has in a SRP 21/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc most unbecoming manner relentlessly and ruthlessly pursued the litigation. We also quote yet again from the judgment of the Division Bench dated 16th November, 2000:
"It may also be possible that she has lost her mental balance because of the said facts. (Though, considering the manner in which the contemner coolly argued the appeal before us, we are not inclined to believe that she has really lost her mental balance)."
We completely endorse this observation.
23. We must emphasize that a Court is not a forum which can be used for spewing venom and vitriol on the opposite party, and even more alarmingly, on the Judge hearing the case and the counsel representing that party.
The written arguments that the respondent has filed in court betray her purpose. The new demands clearly reveal her intention to extort as much as she can from the appellant, who, it must be presumed, is exhausted and drained by the huge number of court proceedings that have been going on for the last 11 years."
16. We are bound by the judgment of the Hon'ble Supreme Court and in cases of the nature brought before the Supreme Court or any Court of law, it would be but its duty and it is not expected to allow a litigant to get away with indecent conduct, rude behaviour etc. That is how every Court of law following this dictum would be justified in making critical observations;
issuing warnings and in some cases, imposing heavy costs personally on such litigants.
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17. However, in the present case, we have not found the learned Judge to be referring to any such act. It may be that the Power of Attorney holder was at times uncontrollable and went ahead with a point and made it in a manner not strictly befitting decency. However, for that itself we cannot uphold the conclusion of the termination of the Power of Attorney. The learned single Judge could not have thus terminated it. We have also found from the record that this very Power of Attorney holder has argued the instant appeal and on behalf of the appellants. She relied upon the very Power of Attorney which was issued in her favour.
18. In the circumstances we are unable to uphold the conclusion and particularly that the person permitted to appear before a Court of law should be qualified to appear. There are no specific qualifications prescribed and indeed we were unable to find one. In such circumstances, none of the judgments that the learned Judge relies upon in support of her ultimate conclusion lay down such a principle. The learned Judge was possibly disturbed because a non-advocate Power of Attorney SRP 23/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc holder conducted the proceedings not necessarily in an orderly manner. It is for the Court to evaluate the level and degree of assistance rendered by the Power of Attorney holder and if it is not rendered any assistance on facts and law, it is justified in making any observations in that behalf; but to direct the termination of the Power of Attorney or the authority of the Power of Attorney to address the court or the right to audience which is otherwise conferred in him or her by the Power of Attorney and clauses thereof, is not, with respect, legally tenable. Pertinently, there is nothing on record demonstrating termination of the Power of Attorney by the appellants. In such circumstances, the impugned order cannot be sustained. It is quashed and set aside.
19. However, we clarify that our order passed today should not be construed as a blanket permission of audience or right to address the Court under any circumstances and irrespective of the conduct on a given day and time crossing all limits of decency and sobriety that is expected of litigants, their agents and pleaders and advocates in Court. Eventually the Presiding SRP 24/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc Officer and the learned Judges, including the learned single Judge who passed the impugned order are anxious to protect the dignity, status and reputation of the institution of judiciary and the Courts in general. They would not, and rightly, approve of any conduct or behaviour which brings the Court of law or the system as a whole into disrepute. They would not allow Court proceedings to be dictated by parties, litigants, their advocates and agents, leave alone undermining the authority of the Presiding Officer or the Judge whom they address or appear before. They are duty-bound to regulate the conduct of parties, their advocates, their agents in order to preserve and maintain the faith of the common man in the institution of judiciary. The respect for the same cannot be allowed to be undermined by the conduct and behaviour of a few in open Court. It is far too precious and must be upheld at any cost. Parties in person, litigants and their agents should not forget that Judges and Presiding Officers are strict in their demeanour and may appear to be stern and at times far too disciplinarian. However, that is not to uphold their personal reputation, prestige, leave alone pride. They have a far larger duty to perform: it is to the SRP 25/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc institution of the judiciary in whom the common man has immense faith and trust. That is something which permits the Presiding Officer and Judges of Courts and Tribunals to take such measures as are necessary to safeguard the decency and decorum in the Court and of the proceedings as a whole.
20. Our interference with the impugned order, therefore, should not send a wrong message and by no means we uphold the manner in which the present Power of Attorney has conducted herself on some occasions even before Division Benches of this Court which were seized of the present appeal.
It is in order to redress a wrong and injustice done to the party or litigant whom the present agent represents that we have interfered with the impugned order. Our exercise should not be construed as upholding or approving any of the acts of the Power of Attorney holder in the past which may have appeared to several Courts, including the Hon'ble Supreme Court, as exhibiting indecent, recalcitrant and rude behaviour. We say nothing more.
21. The appeal is allowed accordingly, without any order as to SRP 26/27 ::: Uploaded on - 28/04/2016 ::: Downloaded on - 29/04/2016 00:02:04 ::: APP25.11.doc costs.
G.S. PATEL, J. S.C. DHARMADHIKARI, J.
SRP 27/27
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