In wake of the prevailing Novel Covid-19 situation in the country, the Hon’ble Supreme Court of India and several High Courts as well as Tribunals have issued circulars limiting hearings of cases to urgent matters only.
Recently, a learned Single Judge of the Bombay High Court imposed a fine of Rs. 15,000 on a litigant whose advocate made a mention to the court for listing the matter for ad-interim reliefs urgently.
On this prayer of the counsel, the learned Judge said that the matter was not urgent and having said so, imposed a cost of Rs. 15,000. The learned Judge stated in his order that the Bombay High Court had issued a circular that only urgent matters be taken up and costs should be imposed for mentioning a matter to be taken up urgently if it is not really urgent.
In this connection, it has to be pointed out that administrative orders of the Court are not binding on judges on the judicial side, and it appears this was overlooked by the learned single Judge. An order imposing costs is a judicial order, and hence it is in the discretion of the Court to pass it or not. He is not bound by the administrative circular of the High Court.
In this connection, it may be mentioned that when one of us, Markandey Katju was a Judge of the Supreme Court of India, in a full Court administrative meeting of the Court one Hon’ble Judge said that a resolution should be passed by the full Court that Judges should not entertain prayers for adjournment of cases listed in Court. At this, Justice Katju said that whether to adjourn a case or not is in the judicial discretion of a Judge, and he is not bound by any administrative order of even the full Court of all the Judges, since adjournment of a case is a judicial order.
Administrative instructions even by the entire full Court cannot bind a Judge on the judicial side. Hence, he said that if the full Court passes such an administrative order he will not obey it, and will act at his discretion when a prayer for adjournment is made by a counsel. If administrative orders of the full Court are regarded as binding on Judges on the judicial side, it will imply that the full Court can pass an order that a particular case listed before a particular judge should be decided in a particular manner. Surely this is unacceptable.
It is always open to the counsel to make a prayer to the Court that amatter be taken up urgently, but it is also open to the Court to reject the prayer saying that there is no urgency. This often happens in Courts of Law. The Counsel/Plaintiff may believe that the matter is urgent, but the Court may opine otherwise and reject the prayer. The ultimate decision as to whether a matter is urgent or not is of course of the Court.
Apart from the above, it is difficult to understand how costs can be imposed just because a mere mention is made to the Hon’ble Judge to take up a case as urgent but which he is of the opinion is not urgent. The same matter may be regarded as urgent by one person and not urgent by another. There can be a genuine difference of opinion between two persons on this matter.
There is no provision in law entitling the court to pass an order of costs merely because a mention for urgent hearing was made by the learned counsel but the court regards the matter as not urgent. Of course if repeated prayers are made frequently in the same matter after the Judge has earlier held that there is no urgency this may amount to vexatious pleas and costs can be imposed. But surely costs cannot be imposed if such a request is made only once or twice.
We therefore reiterate that circulars on the administrative side issued by the Court for imposing costs in such a situation are not binding on the Hon’ble Judges when they find there is no urgency in a matter which has been contended to be urgent by the learned counsel.
Justice Markandey Katju is former Judge, Supreme Court of India and former Chairman, Press Council of India. Aditya Manubarwala, Advocate is practising at New Delhi and Mumbai.
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