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Judgment
Anil Kumar, J.
CM No. 19152/2011
Issue notice to the respondents. Ms.Barkha Babbar, Advocate, accepts notice and states that the allegations made in the applications against her are derogatory. Learned counsel, however, contends that the petitioner/applicant is seeking expunging of the observation of this Court dated 14th November, 2011, "This Court deprecates the action of the petitioner''s counsel", therefore, the application be heard and disposed of.
The petitioner/applicant had filed an application seeking clarification of order dated 11th July, 2011 on 11th November, 2011 and it was listed before the Court on 14th November, 2011. On 14th November, 2011, when the application was taken up for hearing, learned counsel for the respondents, Ms.Barkha Babbar, had brought to the notice of the Court that advance copy of the application was not given to her and that the learned counsel for the petitioner is always indulging in such practice.
On inquiry from learned counsel for the petitioner, it was disclosed that learned counsel for the petitioner had tried to contact counsel for the respondents on phone. Since he could not contact her, therefore, he had given the copy of the application to Sepoy Jitender Singh. Counsel had stated that Sepoy Jitender Singh usually comes to the Court and looks after the Army matters, therefore, the copy of the application seeking direction was given to Sepoy Jitender Singh for delivery to counsel for the respondents, Ms. Babbar.
The allegation by learned counsel for the petitioner/applicant that copy was given to Sepoy Jitender Singh was refuted by learned counsel for the respondents contending that Sepoy Jitender Singh was not looking after the present case.
The High Court rules contemplate serving the advance copy on the nominated counsel or if there is no nominated counsel of any of the party, then on such a party. Since in the present case, the respondents were represented by learned counsel, Ms.Barkha Babbar, there was no occasion to serve the advance copy on anyone else but the nominated counsel who had been appearing in the matter on behalf of the respondents.
On perusal of the application, being CM.No. 18058/2011, it had also transpired that it had an illegible and undecipherable endorsement dated 11th November, 2011 on it regarding delivery of advance copy to someone. In case learned counsel for the respondents was not available and could not be served for any reasons, the only option left with learned counsel for the petitioner was to send the advance copy of the application by post or by courier and to annex the receipt of postal department or of the courier along with application and to file the same.
The relevant rules regarding service of advance copy does not contemplate giving copy of the application or the pleadings to any other person. Learned counsel for the petitioner could not substantiate his plea that Sepoy Jitender Singh usually comes to the Court and looks after the Army matters, therefore, the copy was given to the said person. There was no justification under the rules and in the facts and circumstances for learned counsel for the petitioner to give the advance copy of CM No. 18058/2011 to alleged Sepoy Jitender Singh. In any case, from the illegible and un-decipherable endorsement made on the said application, it could not be ascertained whether any endorsement was made by the alleged Sepoy Jitender Singh or not.
In these circumstances, this Court had deprecated the action of learned counsel for the petitioner and had directed him to supply a copy of the application to the counsel for the respondents and did not take any further action against learned counsel for the petitioner for non compliance of rules regarding service of advance copy of the application.
The present application has been filed by the petitioner/applicant along with an affidavit of learned counsel for the petitioner, Mr.Mohd.Azam Ansari, contending, inter-alia, that for CM No. 18058/2011, he had tried hard to locate and contact Ms.Barkha Babbar, learned counsel for the respondents, but she could not be contacted and therefore, he enquired about Mr.Prabhat. The applicant has further contended that he saw one Army Jawan and enquired from him who represented that Mr.Prabhat had not come to the Court as he was on leave and therefore, he had come in place of Mr.Prabhat. The said person allegedly disclosed his name as Naik Jitender Singh, and consequently, the copy of the CM No. 18058/2011 was given to Army Jawan, Naik Jitender Singh. According to the applicant, the learned counsel had repeatedly reminded Jitender Singh that the matter will come up for hearing on 14th November, 2011 and asked him to handover the copy of the application to Ms.Barkha Babbar, counsel for the respondents.
The applicant has also given the details as to what had transpired in the case of 5th August, 2011 and 4th November, 2011 and has also filed the copies of orders dated 5th August, 2011 and 4th August, 2011 in CCP No. 586/2011.
The learned counsel for the applicant in the application filed on behalf of the petitioner seeking expunging the remarks made against the counsel has also relied on A.V. Papayya Sastry and Others Vs. Government of A.P. and Others, , holding that when an order is obtained by fraud by any party then it is a nullity and can be recalled at any stage. The learned counsel has contended that he fails to comprehend as to why learned counsel for the respondents could not have moved an application to recall the order dated 24th June, 2011 which, according to counsel for the respondents, had been obtained by the petitioner by fraud.
The applicant has contended that it will be welcomed by him if any order is got recalled, if it is obtained by fraud. But the counsel for the respondents should not point out fingers on the counsel for the petitioner. The averments made by learned counsel for the petitioner in the application is as under:-
Even now, she is welcome to resort to that and get that order recalled if is obtained by fraud but for God sake let learned counsel for the respondents not point fingers on the petitioners counsel unnecessarily and before inappropriate forums. She should not forget that after all we both are equally placed both being counsels. She is senior and for that matter petitioner''s counsel pays due respects to her but it does not mean that she being a senior has a right to disrespect to the petitioner''s counsel which she has been continuously trying to do and finally did it on 14th November, 2011 in the open Court before this Hon''ble Court.
The applicant further contended in para 8 of the application as under:-
That mala fides and well thought out plan behind the false and misleading submissions of Ms.Barkha Babbar, learned counsel for the respondents on 14th November, 2011 was nothing but to create bad impression of the petitioner''s counsel before Your Kind Lordships in which she succeeded also as appears from the order dated 14th November, 2011, relevant portion of which reads as - "This Court deprecates the actions of the petitioner''s counsel.
The applicant further contended that his counsel has also learnt from the reliable sources that Ms.Barkha Babbar, learned counsel for the respondents, was in possession of a copy of the CM application No. 18058/2011. It was further asserted that the fact that her name did not appear in the cause list on 14th November, 2011, but still she appeared in the matter proves the facts that she was in possession of the CM application No. 18058/2011 as it is very difficult (if not impossible) to remember an old case by case number and once she can remember an old case by case number then, there is no reason why she could not have remembered a new case by case number and appeared on 24th June, 2011 in CWP No. 4022/2011 by seeing the cause list.
The other allegations made by the counsel for applicant against learned counsel for the respondents are as under:-
Now before proceeding further, petitioner''s counsel would humbly submit that he is not in good terms with the respondents'' counsel and he does not see eye to eye with her for a long time and therefore, it was natural on the part of the Ms.Barkha Babbar, learned counsel for the respondents to put the baseless allegations against the petitioner''s counsel. This was not the first time that she made such false and baseless allegations against the petitioner''s counsel. She raised these baseless allegations previously also on two occasions before this Hon''ble Court on 5th August, 2011 and 4th November, 2011 and on both occasions this Hon''ble Court rejected those allegations about the getting the order changed. Not only that on 4th November, 2011, this Hon''ble Court severely reprimanded respondents'' counsel orally for not complying the court order. Therefore, whatever respondent''s counsel did on 14th November, 2011 was to wreak out vengeance against the petitioner''s counsel. This Hon''ble Court on 4th November, 2011 took a very serious view of the non-compliance of the court order which is apparent from the last sentence of the order of CCP No. 586/2011 which reads as under:-
Needful shall be done within the time sought, failing which the presence of the competent authority, required to take a decision on the statutory appeal of the petitioner, shall have to be ordered.
True copies of this Hon''ble Court order dated 5th August, 2011 and 4th November, 2011 passed in CCP No. 586/2011 are annexed herewith as Annexure P-1 & P-2 respectively.
Perusal of the previous orders passed by this Court do not reflect any of the allegations as has been made by learned counsel for the petitioner against learned counsel for the respondent, Ms. Barkha Babbar, Advocate. The allegations made by learned counsel for the petitioner in the present application are not in good taste and appear to be an attempt to further justify his own irregular act in allegedly handing over the advance copy of the application to Jitender Singh who was allegedly looking after the Army Matters.
The rule for an advance copy contemplates supplying an advance copy to the counsel of the opposite party or nominated counsel and in case the counsel is not available to send copy by post or by courier. Learned counsel for the petitioner/applicant could not create his own procedure to supply copy to any Army Jawan and in case the Army Jawan was on leave than to supply the same to another Army Jawan.
This Court had found that even the endorsement on the application, being CM No. 18058/2011, is illegible and un-decipherable. For these reasons, this Court had observed and deprecated the actions of the petitioner''s counsel.
In the facts and circumstances, the present application seeking expunging the said remarks against the petitioner''s counsel does not have any merit. It is rather an attempt by the counsel to further justify his own lapse. While trying to justify his own lapse, the learned counsel for the petitioner has further made unsubstantiated allegations against the learned counsel for the respondents which are also not in good taste as is apparent from the language used against her in the present application.
In the circumstances, the application seeking expunging of the remarks made by this Court on 14th November, 2011, "This Court deprecates the actions of the petitioner''s counsel.", merit dismissal. The application is, therefore, dismissed with a cost of Rs. 5,000/- on the petitioner which will be payable to learned counsel for the respondents. The application is therefore, dismissed. Cost be paid within two weeks.