NEERAJ GARG versus SARITA RANI AND ORS. ETC. on 2 August 2021

1. Leave granted. The appellant is a practicing lawyer, before theHigh Court of Uttarakhand with around 17 years standing as member ofthe Bar. The present appeal is limited to expunging certain observationsmade against the appellant by the learned Judge of the High Court whiledeciding four cases in which the appellant was representing one of theCcontesting parties. The following are the orders and proceedings of theHigh Court with which, we are concerned in this matter:

“W.P. (M/S) No.2216 of 2017 and W.P. (M/S) No.2208 of 2017titled Vira Wali Manga Vs. Sarita Rani, S.A. No.190/2019 titledLandour Community Hospital Vs. Sandeep Bishnoi. S.A. No.D182 of 2019 titled Vinod Kumar Vs. Mandir Laxmi, W.P. (M/S)No. 519 of 2019 titled Parul Prakash Vs. Anil Prakash.”

2. This Court issued returnable notice in the matter on 02.07.2021and appointed Mr. Amar Dave as the amicus curiae to assist the Court.Mr. Dave appears and makes submissions accordingly. The Office ReportEin the case reflects that the Counsel for the Appellant has circulated aletter dated 13.07.2021 stating therein that the Petition has been filedonly for expunging certain observations recorded against the Appellantby the High Court in the concerned cases and the Appellant is not seekingany relief against any of the arrayed Respondents and as such they beFtreated as Proforma Respondents.

3. Representing the appellant, Mr. Mukul Rohatgi, the learnedSenior Counsel submits that the appellant is regularly practicing in theUttarakhand High Court with a fairly large practice. The Counsel thensubmits that the remarks/observations made by the learned Judge againstthe Appellant were recorded without putting the counsel to notice orGproviding any hearing to him, before recording the adverse comments.It is also submitted that those recordings are neither essential nornecessary for the Court’s verdict in the concerned cases. According toMr. Rohatgi, such adverse comments will not only undermine theprofessional reputation of the Appellant but would also impact his standingHand practice as a lawyer.

NEERAJ GARG v. SARITA RANI AND ORS. ETC.[HRISHIKESH ROY, J.]

4. The learned amicus curiae, Mr. Amar Dave, together with thelearned Senior Counsel Mr. Mukul Rohatgi have drawn specific attentionof this Court to the following remarks in the High Court’s judgementdated 14.11.2017, in the W.P. (M/S) No.2216 of 2017 and W.P. (M/S)No.2208 of 2017, where the Appellant was appearing for one of thecontesting parties in the case.

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16. I express my deep anguish and hesitantly refraining myselffrom taking any action against the counsel for the petitioner forproducing only part of document and placing reliance on the samefor procuring an interim order by suppressing material fact.

17. The counsel for the petitioner is a seasonal advocate he owesa responsibility towards the institution and fraternity too, he haddeliberately created a wrong example for the pious institution.*************** ’’

5. Similarly, in the second case, i.e., S.A. No.190/2019 the learnedJudge on 22.11.2019 recorded the following comments:

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2. In the present Second Appeal, when the argument for thelearned counsel for the appellant was initiated too be addressedforquite some time, this Court is of the view that the tenacity ofargument of the learned counsel for the plaintiff/ appellant was ina manner as if, he was intentionally attempting to make a mountainof a mole, which this Court will not hesitate to re mark that was abrutal assassination of time for those other litigants, whose matterswere pending consideration on the said date before this Court. ‘Itfurther reflected that as if it was not an argument for the case butrather for the visitors’ gallery.

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6. In the third judgement, i.e., S.A. 182 of 2019 dated 12.03.2020,the following unacceptable conduct of the counsel was noted:

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In order to avoid an argument at admission stage of the presentSecond Appeal, before this Court, the learned counsel for the A

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SUPREME COURT REPORTS

Aappellant submitted that in a prior proceedings which was heldbefore this Court by way of Writ Petition (M/S) No. 604 of 2009,Sri Vinod Goel v. Sri Sushi/ Chandra Sabbarwal & Another, sinceI had appeared as a counsel on behalf of the defendant/appellantherein, an attempt was made at a later stage of arguments, toavoid to address of the Second Appeal on its merits before thisBCourt.

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7. In the fourth case, W.P.(M/S) 519 of 2019, the Court on22.02.2021, noted its displeasure against the counsel in the followingCmanner:

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2. Though this Court should have avoided to make this remark,but owning to the deliberate and intentional, modus operandi, whichis normally adopted, which has now, become a regular feature,Dalmost in most of the cases, which are filed by the learned counselfor the petitioner, this Court is constraint to make certainobservations, which has been invariably found, to be followed bythe learned Counsel, basically intended so as to mislead the Courtor to avoid an adjudication of the case on merits and to pose theEdifficulty to the Court, at the time of hearing of the Writ Petitionitself at admission stage, itself, by putting uncalled for documents,which are not even relevant, including the copy of the citation/judgments, on which he wants to rely, as part of the records of theWrit Petition, making the records of the Writ Petition, running intoseveral volumes, and that too in a writ jurisdiction under ArticleF227 of the Constitution of India, which is arising of the concurrentjudgments.

3. This has been a clear and a consistent device, and a tacticswhich has been adopted by the learned counsel for the petitioner,by placing voluminous records in the Writ Petition, including theGcopies of precedent/ judgments, on which, the reliance has beenplaced by the learned counsel for the petitioner, which in the instantcase happens to be about 20 judgments, which the petitioner’scounsel contends to rely on, in support of his case, as against theconcurrent finding of facts, which has been recorded by both theCourts, below and that too in a summary proceedings, which were H

held, under Section 21(1)(a) of Act No. 13 of 1972. Though forthe reasons to be recorded hereinafter, it could be apparentlyinferred, that even most of the judgments, on which, reliance hasbeen made, are not even relevant for the purposes of considerationof the case, and even they may not be applicable under the factsand circumstances of the present case.

4. This attitude, adopted cannot be ruled out to be a professionaland a strategic device, which is being adopted, so that Court mayat the stage of hearing for admission of writ, due to paucity oftime, would be constraint to admit, even the Writ Petitions, whichare arising from concurrent judgments, in a summary rent controlproceedings, where grant of interim order would become inevitableduring its pendency, besides being taxing on the litigant also, tomeet the artificially escalated expenses too, and this strategy isnot an isolated example, but rather it is a regular feature, whichhad been adopted by the Counsel, as a routine in most of thecases, which are being instituted from his Chamber. Thismethodology is being deliberately adopted with a premonition, thatif judgment is put to challenge before a superior platform, he mayhave his argument protected that the judgment relied by him, andwhich were on record, before the Court, were not considered bythe Court, and thus the judgment is a consequence of non-application of mind, by the High Court.

52. This Court before addressing the judgment relied, on its merit,this Court had a l ready observed in para 2, 3 and 4 of the judgment,the modus operandi, of the counsel for the petitioner to placereliance on the irrelevant judgments, which had got no significanceor its applicability, under the facts and circumstances of the presentcase, and this Court has already consciously observed that theintention behind making reference to the judgement, was to misleadthe Court and to buy time in prolonging the proceedings in orderto overcome the effect of dismissal of the concurrent, WritPetitions in limine by placing voluminous judgements on records,and making references of them, by quoting its excerpts.

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8. The Appellant contends that the above referred comments inthe judicial orders of the High Court against the Counsel’s conduct werenot needed for adjudication of the matters under consideration. In any AB

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Acase, the observations could not have been recorded without putting thecounsel on notice about the intention of the Court. It is also submittedthat by virtue of the remarks recorded against the Appellant, his hard-earned reputation has been tarnished. To project that such remarks wereunmerited, Mr. Rohatgi points out that the Appellant, with an otherwiseunblemished professional record, had no occasion to suffer such adverseBremarks from any other judge of the High Court. Since the concernedPresiding Judge, before his elevation on 19.05.2017 to the Bench, was amember of the same Bar as the Appellant and both were rival counsel inseveral contested matters, Mr. Rohatgi submits that the comments mayhave emanated from personal prejudice and may not be otherwiseCwarranted. Accordingly, it is argued that the Appellant should not bemade to suffer adverse comments on his conduct as a lawyer onlybecause the concerned Judge may not appreciate the efforts made bythe Counsel, on behalf of his client.

9. To press home the argument that the offending remarks againstDthe counsel are unmerited, and do not meet the required parameters, thelearned Sr. Counsel has cited State of U.P. vs. Mohammad Naim[1 ]whereJustice S.K. Das laid down the following tests to be applied while dealingwith the question of expunction of disparaging remarks against a personwhose conduct comes in for consideration before a Court of law. Thosetests are:E(a)Whether the party whose conduct is in question is before thecourt or has an opportunity of explaining or defending himself; (b) Whether there is evidence on record bearing on that conductjustifying the remarks; andF(c) Whether it is necessary for the decision of the case, as anintegral part thereof, to animadvert on that conduct.

10. In Alok Kumar Roy Vs. Dr. S.N. Sarma[2], in the opinion writtenby Justice C.K.Wanchoo for a Five Judges Bench, this Court hademphasized that even in cases of justified criticism, the language employedGmust be of utmost restraint. The use of carping language to disapproveof the conduct of the Counsel would not be an act of sobriety, moderationor restraint.

1 AIR 1964 SC 703H2 (1968) 1 SCR 813

11. The judgement of this Court in A.M. Mathur Vs. PramodKumar Gupta[3], delivered by Justice K Jagannatha Shetty, elaborateson the need to avoid even the appearance of bitterness. The Courtobserved that, “13…The duty of restraint, this humility of function should beconstant theme of our judges. This quality in decision making is asmuch necessary for judges to command respect as to protect theindependence of the judiciary. Judicial restraint in this regard mightbe better called judicial respect, that is respect by the judiciary…”

12. The importance of avoiding unsavory remarks in judicial ordersas per established norms of judicial propriety has also been succinctlynoted in Abani Kanta Ray Vs. State of Orissa[4] by Justice J.S. Verma,in the following words,

“Use of intemperate language or making disparaging remarksagainst anyone, unless that be the requirement for deciding thecase, is inconsistent with judicial behaviors. Written words in judicialorders are for permanent record which make it even morenecessary to practice self- restraint in exercise of judicial powerwhile making written orders.”

13. The principles laid down as above, have been quoted withapproval and applied by this Court in several subsequent judgments,including for a 3 Judge Bench in Samya Sett Vs. Shambhu Sarkar andAnother[5]. In this case Justice C.K. Thakker, writing for the Court opinedthat the adverse remarks recorded were neither necessary for decidingthe controversy raised before the Court nor an integral part of thejudgement, and accordingly directed deletion of those remarks.

14. The proposition of law laid down by Justice S.K. Das on behalfof the Four Judges Bench in Mohammed Naim (Supra) on recording ofadverse remarks has been approved in a catena of decisions since 1964.It was also cited by the Supreme Court of Sri Lanka in A.N. Perera Vs.D.L.H. Perera and Ors.[6] where Abdul Kadir J. speaking for the Benchapproved of the tests laid down by this Court and concluded that the 3 (1990) 2 SCC 533

4 1995 Supp (4) SCC 169

5 (2005) 6 SCC 767

6 1982 SCC SL SC 20

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Ajudge’s comments against the petitioner in that case were thoroughlyunwarranted under each of those tests.

15. While it is of fundamental importance in the realm ofadministration of justice to allow the judges to discharge their functionsfreely and fearlessly and without interference by anyone, it is equallyBimportant for the judges to be exercising restraint and avoid unnecessaryremarks on the conduct of the counsel which may have no bearing onthe adjudication of the dispute before the Court.

16. Having perused the offending comments recorded in the HighCourt judgments, we feel that those could have been avoided as theywere unnecessary for deciding the disputes. Moreover, they appear toCbe based on the personal perception of the learned Judge. It is alsoapparent that the learned Judge did not, before recording the adversecomments, give any opportunity to the Appellant to put forth hisexplanation. The remarks so recorded have cast aspersion on theprofessional integrity of the appellant. Such condemnation of the Counsel,Dwithout giving him an opportunity of being heard would be a negation ofthe principles of audi alteram partem. The requisite degree of restraintand sobriety expected in such situations is also found to be missing in theoffending comments.

17. The tenor of the remarks recorded against the appellant willnot only demean him amongst his professional colleagues but may alsoEadversely impact his professional career. If the comments remainunexpunged in the court judgments, it will be a cross that the Appellantwill have to bear, all his life. To allow him to suffer thus, would in ourview be prejudicial and unjust.

18. In view of the forgoing, we are of the considered opinion thatFthe offending remarks recorded by the learned judge against the appellantshould not have been recorded in the manner it was done. The appellantwhose professional conduct was questioned, was not provided anyopportunity to explain his conduct or defend himself. The commentswere also unnecessary for the decision of the Court. It is accordinglyGheld that the offending remarks should be recalled to avoid any futureharm to the appellant’s reputation or his work as a member of the Bar.We therefore order expunction of the extracted remarks in paragraphs4, 5, 6, and 7 of this judgement. The appeals are accordingly disposed ofwith this order.

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Devika Gujral