Calcutta High Court (Appellete Side)
Suman Bez vs Shyamal Kumar Dutta & Anr on 11 April, 2016
IN THE HIGH COURT AT CALCUTTA
Civil Revisional Jurisdiction
Appellate Side
Present :
The Hon'ble Mr. Justice Ashis Kumar Chakraborty
C.O. No. 2277 OF 2015
Suman Bez
Vs.
Shyamal Kumar Dutta & Anr.
For the petitioner : Mr. Probal Mukherjee
Mr. Suhrid Sur
For the opposite party nos. 1 and 2 : Mr. Jyoti Prokash Chatterjee
Judgment on: April 11, 2016.
Ashis Kumar Chakraborty, J.
This revisional application is at the instance of the advocate representing the opposite party nos. 9 to 13, being the defendant nos. 1, 2, 7, 8 and 11 in Title Suit No. 1 of 2015 filed by the opposite party nos. 1 and 2 before the learned District Judge, Burdwan, presently standing transferred to and pending before the Court of the learned District Judge, Hooghly at Chinsurah and renumbered as O.S. No. 1 of 2005 (hereinafter referred to as "the said suit"). In the present application, the petitioner has prayed for expunging the observations made by the learned District Judge, Burdwan against him by the Orders dated May 20, 2015, May 27, 2015 and May 30, 2015 passed in the said suit.
The facts which are relevant for deciding the present application are as follows:
The opposite party nos. 1 and 2 are the advocates practising in the Courts under the learned District Judge, Burdwan. They alleged themselves to be the devotees and worshippers of the deity Mata Sarbamangala Thakurani (hereinafter referred to "the said deity") and filed the said suit against the opposite party no. 9 Sarbamangala Trust Board (hereinafter referred to as "the Trust Board") and its members, including the previous Secretary of the Trust Board, the opposite part no. 3, who is the seristadar attached to the Court of the learned District Judge, Burdwan. The opposite party nos. 10 to 13, being the defendant nos. 2, 7, 8 and 11 in the said suit, are the members of the Trust Board.
For the sake of convenience, the parties are hereinafter referred to by their array in the said suit. In the said suit the plaintiffs prayed for, leave under Section 92 and Order I Rule 8 of the Code of Civil Procedure, 1908, (hereinafter referred to as "the Code") and claimed, inter alia, a decree for framing of a scheme for management and administration the properties both movable and immovable, belonging to the said deity and the defendant no. 1 Trust Board, to continue the daily seva puja and other affairs of the said deity, as also for appointment of a Receiver/an Ad-hoc Committee/Special Officer to manage and administer the properties and affairs of the said deity and the defendant no. 1 Trust Board. In the said suit, the plaintiffs also filed an application under Order XL Rule 1 of the Code, for appointment of a Receiver over and in respect of the properties of the said deity and the defendant no. 1 Trust Board. On May 13, 2015 the learned District Judge, Burdwan granted the leave both under Section 92 and Order I Rule 8 of the Code in favour of the plaintiffs, ex parte and fixed the hearing of the application for appointment of Receiver on May 18, 2015. The learned District Judge directed service of the said application on the defendants and that the defendants were to file their show cause reply on May 18, 2015 positively, failing which the Court would pass an order appointing an Ad-hoc Committee/Special Officer/Receiver as prayed for by the plaintiffs. On May 18, 2015 the hearing of the application for appointment of the Receiver was adjourned till May 20, 2015. On May 20, 2015 the defendant nos. 1, 2, 7, 8 and 11, filed an application before the learned District Judge praying for, revocation of the ex parte leave granted to the plaintiffs to file the said suit, under Section 92 and Order I Rule 8 of the Code. By the order dated May 20, 2015 the learned District Judge refused to recall the ex parte Order dated May 13, 2015 granting leave to the plaintiffs under Section 92 and under Order I Rule 8 of the Code and appointed three persons as the Special Officers to carry out various acts in relation to the affairs of the said deity and the defendant no. 1 Trust Board.
By the said order dated May 20, 2015, the learned District Judge further held that while drafting the said application, the petitioner in this application as the advocate of the defendant nos. 1, 2, 7, 8 and 11 in the said suit, levelled some allegations of bias against the Court, knowing fully well that those allegations are absolutely out and out false, frivolous and baseless and the conduct of the petitioner amounts to professional misconduct. By the said order dated May 20, 2015 the learned District Judge directed the petitioner, to show cause by May 27, 2015 (hereinafter referred to as "the said first show cause") as to why the matter should not be referred to the Bar Council of West Bengal, for initiating a disciplinary action against him or for cancellation of his enrolment. In the said order, the learned District Judge further observed that during his argument the learned senior advocate of the defendant nos. 1, 2, 7, 8 and 11 alleged the Court being biased and when such submission was condemned by the Court the said senior advocates in open Court, tendered apology for committing professional misconduct towards the Court of law. The date for filing objection by the plaintiffs against the petition of the defendants for revocation of leave granted under Section 92 and Order I Rule 8 of the Code was fixed on June 04, 2015.
On May 27, 2015 the petitioner filed his reply to the said first show cause before the learned District Judge. In the said reply to the show cause, a copy whereof has been disclosed in the present application, the petitioner explained that he had drafted the said revocation application based on facts as he was instructed by the defendant nos. 1, 2, 7,8 and 11 in the suit, the said application was settled by the said senior advocate and the allegations made in the said revocation application was duly verified and affirmed by the applicants in the said application and, therefore, the allegations made in the said petition could not be attributed to him and by no means he can be held to have committed any act of professional misconduct or his name can be referred to Bar Council of West Bengal for initiating any disciplinary action against him or for cancellation of his enrolment. In the said affidavit, the petitioner also denied that there was any occasion for the said senior advocate, during the hearing on May 20, 2015 to tender apology for any alleged professional misconduct.
On May 27, 2015 after considering the affidavit filed by the petitioner as the reply to the said first show cause, the learned District Judge held that the contents of the said affidavit are out and out false and baseless and directed the petitioner, to show cause, on May 30, 2015 as to why a criminal proceeding shall not be initiated against him for furnishing false affidavit, before the Court of law (hereinafter referred to as "the second show cause"). The petitioner also filed another affidavit, as his reply to the said second show cause stating that he had not made any false, perjurious and untrue statement in his reply affidavit to the said first show cause. In his second affidavit, the petitioner disclosed a letter received by him from the senior advocate leading him in the matter, disputing the correctness of the recording in the order dated May 20, 2015, about his conduct.
On May 30, 2015 when the matter was taken up for hearing by the learned District Judge, for considering the reply affidavit filed by the petitioner against the said second show cause, the petitioner prayed for an adjournment on the ground that the said senior advocate would appear on his behalf. From the order sheet of the learned Court below relating to the said suit, it appears that before considering the prayer of the petitioner for an adjournment of hearing of his reply to the said show causes on May 30, 2015 the learned District Judge asked the petitioner as to why he is inviting trouble in his carrier by declaring a war against the Court and by committing an act of furnishing false statement by swearing three affidavits, when it is needless to reiterate that, it was well within the presence and hearing of the learned lawyers of Burdwan Bar Association, litigants, devotees, court staff on May 20, 2015, during the hearing of the petition for revocation of the grant of leave, the said senior advocate made false and baseless aspersion of bias on the Court and subsequently, on being protested by the Court, he tendered apology for his professional misconduct. Once again, before considering the prayer of the petitioner for adjournment of hearing of his reply to the said show causes, the learned District Judge held that the said senior advocate of the said defendants and the petitioner have committed scandalous act of making false and baseless statements which should be dealt with and disposed of by him being the Presiding Judge and it will be wise to take decision on such matter promptly. According to the learned District Judge, he was under order of transfer, since on any date he shall make over the charge of the Court and Office of the District Judge, Burdwan and there was shortage of time when the learned lawyers of the Burdwan Bar Association had unanimously taken a resolution to observe cease work on and from June 01, 2015 to June 04, 2015 due to scorching heat, there was no alternative but to dispose of all the allegations at the earliest and he rejected the prayer of the petitioner for adjournment of hearing. Thereafter, the learned District Judge felt it wise to make the petitioner understand to refrain himself from declaring a war against the Court of the learned District Judge so that his carrier may not be put in jeopardy. It was then recorded in the order dated May 30, 2015 that when the learned District Judge took up the matter for hearing after half an hour, the petitioner in presence and hearing of other lawyers and court staff, with folded hands, submitted before the Court that he is a junior advocate and under the compelling circumstances, he filed those affidavits containing those statements and that he being the junior lawyer, is the victim of the circumstances and technicalities and tendered apology and submitted that if the order dated May 20, 2015 is recalled, he is ready and willing not to press such affidavits and also the allegations so levelled on the Court as he was instructed by his senior lawyer.
Thereafter, the learned District Judge held that the petitioner as an advocate has committed a scandalous act and adopted a classical technique to create pressure on the Court by levelling false allegations of bias and by denying the truth of tendering apology for professional misconduct, with a view to gain over the case, in their favour.
The learned District Judge further held that the statements of bias as mentioned in the petition for revocation of the grant of leave under Section 92 and Order I Rule 8 of the Code and the affidavit of the petitioner denying the fact of tendering apology by the said senior advocate for professional misconduct towards the Court of law are out and out false, frivolous and baseless and sufficient to cloud sanctity of the judiciary. However, the learned District Judge held that considering the early stage of the legal practice of the petitioner and obviously the petitioner's future carrier, he found it wise to refrain from taking any coercive action against the petitioner either by referring the matter to the Bar Council of West Bengal or by initiating any criminal proceeding against him for submission of false, baseless and provoking statements by swearing the affidavits filed by him on behalf of the contesting defendants and also for denying the truth of tendering apology for professional misconduct of the said learned senior advocate, in open Court. The learned District Judge also held that since the entire episode relates to the said deity, he is leaving the entire unethical activities so committed by the petitioner to the said deity, being the supreme authority in this regard.
Mr. Prabal Mukherjee, the learned senior advocate appearing on behalf of the petitioner contended that in the application filed for revocation of the ex-parte leave granted by the learned District Judge, Burdwan in the said suit under Section 92 and Order I Rule 8 of the Code, the defendant nos. 1, 2, 7, 8 and 11 alleged that the defendant no. 3 is the seristadar attached to the Court of the learned District Judge, Burdwan, who was removed from the post of the Secretary of the Trust Board on May 03, 2015 had caused the said suit being filed by the plaintiffs, who are the advocates practising in the Court of the District of Burdwan, to settle his personal vendetta; none of the advocates belonging to the Civil Bar at Burdwan agreed to represent the defendants in the said suit before the learned District Judge and that refusal of their prayer to allow them to file a written objection to the application for appointment of Receiver, gave rise to a reasonable apprehension in their mind that they may be denied justice. He submitted that the said application for revocation of the grant of ex parte leave under Section 92 and Order I Rule 8 of the Code was verified by an affidavit affirmed by the defendant no. 7 for himself and for the defendant nos. 1, 2, 8 and 11 and the learned District Judge, ought not to have held that by drafting the said petition the petitioner, being the advocate of the applicants, committed any professional misconduct.
According to Mr. Mukherjee, the above remarks made by the learned District Judge against the petitioner are adverse remarks, which will affect the reputation and practice of the petitioner as an advocate and as such the said remarks contained in the said orders dated May 20, 2015, May 27, 2015 and May 30, 2015 passed by the learned District Judge, Burdwan in the said suit should be expunged by this Court.
Mr. Mukherjee further submitted that on an appeal filed by the defendant nos. 1, 2, 7, 8 and 11 being FMAT No. 562 of 2015, the Hon'ble Division Bench of this Court set aside the said order dated May 20, 2015 passed by the learned District Judge, Burdwan appointing three special officers with the finding that prima facie, the said order passed by the learned District Judge was based on surmises and conjectures.
He further submitted that the conduct of the proceeding of the said suit before the Court of the learned District Judge, Burdwan particularly the fact that the defendant no. 3 in the said suit, whose removal from the post of the Secretary of the said Trust, on May 03, 2015 was the cause of action of the plaintiffs to file the said suit, was the seristadar to the Court of the learned District Judge, Burdwan gave serious apprehension to the defendant nos. 1, 2, 7, 8 and 11 that they were to be denied justice and, therefore, the said defendants filed an application before this Court under Section 24 of the Code of Civil Procedure, 1908, and by an order dated July 10, 2015 this Court allowed the said application and transferred the suit to the Court of the learned District Judge at Chinsurah, Hooghly.
In support of his contention for the relief claimed by the petitioner, Mr. Mukherjee placed reliance on the decisions of the Supreme Court in the cases of Dr. Raghubir Saran Vs. State of Bihar reported in AIR 1964 SC 1, Arun Devendra Oza Vs. State of Gujarat and Anr. reported in (2001) 10 SCC 195, Sharad Bansilal Vakil Vs. Cibatual Ltd. & Ors. reported in (1997) 10 SCC 378 and the Division Bench decision of this Court in the case of Debabrata Chakravarty Vs. M.K. Das and Ors. reported in 1989(2) CLJ 214.
From the affidavit of service filed on behalf of the petitioner it appears that a copy of this application was received by the advocate of the opposite party nos. 1 and 2 plaintiffs and the opposite party nos. 4, 7 and 8 (the defendant nos. 4, 9 and 10 respectively). So far as the opposite party no. 3 (the defendant no. 3 is the suit) the postal authority attempted to deliver a copy of the application on him but as the door of his house was found locked, an intimation was served but he did not collect the article from the post office. From time to time different advocates appeared on behalf of the plaintiffs and in spite of obtaining opportunity to file any affidavit-in-opposition to this application, the plaintiffs did not file any affidavit-in-opposition to this application. Even the learned counsel representing the plaintiffs made no submission in this application to dispute the allegations made in this application.
With regard to the maintainability of the present revisional application filed by an advocate, as has been held by the Supreme Court in the cases of Raghubir Saran (supra), Arun Devendra Oza (supra) and the Division Bench of this Court in the case of Debabrata Chakravarty (supra) cited on behalf of the petitioner, it is well settled that even an advocate representing a party aggrieved by an adverse remark made against him personally by a subordinate Court is entitled to maintain a revisional application before the High Court to challenge the adverse remark made against him/her. Now, the question arises with regard to the merit of the present revisional application. In the case at hand, when the defendant nos. 1, 2, 7, 8 and 11 in the said suit, in their application for revocation of ex parte leave under Section 92 and Order I Rule 8 of the Code expressed their apprehension that they would be denied justice, inter alia, on the ground that the defendant no. 3, the sheristadar attached to the Court of the learned District Judge, who was removed from the post of Secretary of the Trust Board on May 03, 2015 had engineered the said suit being filed.
In the order dated May 20, 2016 the learned District Judge held that the apprehension of the said defendants are unfounded as the defendant no. 3 accepted his removal from the post the Secretary of the Trust Board by putting his signature on the resolution book and according to him, the defendant no. 3 is an unnecessary party to the suit. However, later in the same order, the learned District Judge appointed the three Special Officers to oversee the affairs of the Deity and the Trust Board on the ground that sudden removal of the Secretary and the co-option of the defendant no. 11, in its aftermath, has given rise to an air of mistrust and the Deity is in the hands of some unruly persons. Admittedly, the defendant no. 1 is the Trust Board and the defendant nos. 1, 2, 7, 8 and 11 are the members of the Trust Board and the learned District Judge considered them to be unruly persons. In these circumstances, the learned District Judge would have done better not to issue the show cause against the petitioner, more so when the case was argued on behalf of the defendant nos. 1, 2, 7, 8 and 11 by a learned senior advocate, who according to the learned District Judge laid stress on the word "biasness" against the Court and tendered apology. It appears that the learned District Judge although being unhappy with the conduct of the senior advocate of the defendant nos. 1, 2, 7, 8 and 11 took no step against the said senior advocate but he went after the petitioner, being the junior advocate and issued one after another show cause against him. While passing the order dated May 30, 2015 the learned District Judge should have remembered that the majesty of a Court of law remains in the respect shown by an advocate while making his submission before the Judge without any fear. Once again, the learned District Judge would have done better not to record that the petitioner, with folded hands, made his submission before the Court which only goes to indicate that the petitioner was overawed by the threat held out by the Court that unless he apologises his career will be at jeopardy.
This Court would accordingly allow the application and would also direct the observation recorded by the learned District Judge, Burdwan, in the orders dated May 20, 2015, May 27, 2015 and May 30, 2015 respectively passed in Title Suit No. 1 of 2015, presently renumbered as O.S. No. 1 of 2015 pending before the District Judge, Hooghly to the effect that the petitioner, Suman Bez while drafting the petition on behalf of the defendant nos. 1, 2, 7, 8 and 11 has levelled some allegations of bias, that he has furnished false affidavit, that he declared a war against the Court, that he has committed a scandalous act of making false and baseless statements, that he adopted a classical technique to create pressure on the Court with a view to gain over the case and that he has committed unethical activities shall stand expunged.
However, there shall be no order as to costs.
Let an urgent certified copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Ashis Kumar Chakraborty, J.)