S.N. Srivastava, J.@mdashThe Petitioners instituted this civil contempt petition for the alleged wilful flouting of order passed by this Court on 23.12.1988 in F.A.F.O. No. 452 of 1988.
2. The facts draped in brevity are that by means of judgment dated 28.4.1988, the application for temporary injunction 6C-2 was allowed and Defendants were restrained from taking possession of the property forcibly without observing in compliance the due procedure prescribed under the law. The present applicant moved an application seeking vacation of stay order dated 23.12.1988. Acting on this application, this Court passed following orders:
"Meanwhile parties are directed to maintain status quo.
3. The case figured in the cause list on 19.8.2002, on which date a mention was made on behalf of Sri Ashok Mehta, learned Counsel for the Petitioners to adjourn the case and to take it up on 21.8.2002. The case was called out on 21.8.2002 but he was conspicuous by his absence. In the first round, the case was passed over to be taken up in the revised list apparently not to appear to be harsh and to afford one more opportunity to learned Counsel for the Petitioners. The case was again taken up in the revised list on 23.8.2002 and it was in the second round that the Court proceeded to delve into the record in order to ascertain the sufficiency of facts.
4. From the perusal of the entire record, it transpires that the relief sought in contempt petition is to initiate action against opposite parties for wilful flouting of the order dated 23.12.1988 passed in F.A.F.O. No. 452 of 1988. I delved into the record of F.A.F.O. No. 452 of 1988 and from its perusal, it transpired that the order dated 23.12.1988, the alleged flouting of which constituted the basis for filing the present contempt petition, had already been vacated by the Court on 29.3.1989, i.e., prior to the institution of the instant contempt petition.
5. The Petitioners have approached this Court in the contempt jurisdiction by concealment of correct facts and by this reckoning, it appears to me that an attempt has been made by the Petitioners to inveigle the Court into passing an order consistent with their design. I would not forbear from expressing here that bar and bench are the joint guardians of the rule of the law. The counsel being responsible officer of the Court is obligated upon to assist the Court for just and proper administration of justice. The Courts cannot be expected to be cognisant of the correct facts and it is in this perspective that the assistance from the counsel is expected as a responsible officer of the Court. In the performance of his professional duties, a counsel is expected not to be influenced or swayed by person, motives, desires or resentment. Observation made by Lord Birkenhead, L.C. in Globe Sugar Refining Co. Ltd. v. Trustee of the Port and Harbours of Greenock may aptly be reproduced below:
"A similar matter arose in this House some years ago and it was pointed out by the then Presiding Judge that the withholding from their Lordships of any authority which might throw light upon the matter under debate was really to obtain a decision from their Lordships in the absence of the material and information which a properly informed decision required ; it was in effect, to convert this House into a debating assembly upon legal matters, and to obtain a decision founded upon imperfect knowledge. The extreme impropriety of such a course could not be made too plain.
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7. Chapter II of the Rules Governing Advocates framed u/s 49(1)(g) of the Advocates Act, 1961, dwells upon duty of an Advocate to the Court. Relevant provisions of Chapter II of the aforesaid Rules are quoted below:
(4) An advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing counsel or parties which the advocate himself ought not to do. An advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouth-piece of the client, and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in Courts...
x x x x x
14. An advocate shall at the commencement of his engagement and during the continuance thereof, make all such full and frank disclosures to his client relating to his connection with the parties and any interest in or about the controversy as are likely to affect his client''s judgment in either engaging him or continuing the engagement.
8. Synopsis contained in Section 35 of the Advocates Act, 1961 (Sixth Edition) by Sanjiva Row, aptly deals with the conduct of advocates. Clause 13 (3) of the synopsis being germane to the discussion on the point may be referred to and it is summed up herein that a lawyer owes a duty to the Court to assist it in the administration of justice and with respect to certain matters and this duty overrides his duty to his client. The norms to be observed by an Advocate as encapsulated in Clause 13 (3) of the synopsis may be reproduced below:
(a) He must not be a party to the fabrication of false evidence. If he knows that his client has given false oral evidence, he should withdraw from the case if the client refuses to correct it. If the client insists on a false affidavit being filed, he should refuse to continue to act for him.
(b) He should take care not to say anything to a client of whose honesty he is not sure, that may show the client how to improve his case by false evidence.
(c) He must not present to the Court on behalf of his client a dishonest claim or defence, but a defence that does not more than put the Plaintiff to proof is proper.
(d) Where the law lays on a litigant a duty to disclose facts, it is the duty of the legal adviser to see that true disclosure is made, and if the client refuses to retire from the case.
(e) He must not abuse the process of the Court in order to injure the opponent or to benefit himself.
(f) When appearing as an Advocate, he must disclose to the Court any relevant legislation or cases of which he is aware.
It was also duty of Sri Ashok Mehta, learned Counsel for the Petitioners not only as an advocate but also as a responsible officer of the Court, to have searched the entire record so as to cull out the correct facts and could have filed the contempt petition only on the basis of such facts as appeared to him to be correct. In the instant case, he also did not call attention of the Court to the fact that the interim order dated 23.12.1988, had already been vacated before the present contempt petition was instituted. In the above perspective, I am anguished and would like to give strong expression to the view that the conduct of Sri Ashok Mehta, was not consistent with the conduct expected of a responsible member of the Bar as well as a responsible officer of the Court and he was, in the light of the facts discussed above, a privy to the abominable and reprehensible conduct of the Petitioners in the instant case. As stated supra, the case figured in the cause list on 19.8.2002 on which date request was made by Sri Ashok Mehta to adjourn the case as a result of which 21.8.2002, was fixed. The case was called out on 21.8.2002 but he was conspicuous by his absence. In the first round, the case was passed over to be taken up in the revised list apparently not to appear to be harsh and to afford one more opportunity to learned Counsel for the Petitioners. The case was again taken up in the revised list on 23.8.2002 and it was in the second round that the Court proceeded to delve into the record in order to ascertain the facts. In the above conspectus, I perceive that the contempt petition was a vain endeavour on the part of the applicant to mislead the Court and Sri Ashok Mehta was fully aware of the factum of stay order having been vacated in the F.A.F.O. and showed no compunction in advising his client against endeavouring to mislead the Court or at least, to recluse himself from the case which had no grounding in facts but was based on a tissue of lies. His conduct in not showing up on the date which had been fixed on the request made on his behalf or even subsequently, was wholly unethical and unprofessional and cannot be viewed with equanimity.
9. Moreover, from the record it appears that by the order dated 18.4.1989, this Court had directed the contempt petition to be listed along with record of F.A.F.O. No. 452 of 1988. In pursuance of that order, office placed the record of F.A.F.O. No. 452 of 1988 with office report dated 20.8.2002. The factum of concealment of material facts and that the Petitioners have approached this Court with unclean hands leaped to the notice of the Court from a perusal of record of F.A.F.O. aforesaid.
10. In these circumstances, the contempt petition is dismissed with the above observations.
