Ramon Services Pvt Ltd v Subhash Kapoor (2000)

An advocate does not appear because the Bar has called a strike. The case is decided ex parte. Who bears the loss?

Before this decision the courts' answer had effectively been: the other side. Matters were adjourned out of sympathy with the Bar, and an ex parte order obtained in the meantime was routinely set aside, leaving the opposing litigant with the costs and the delay. This judgment breaks that pattern with a proposition that should be quoted in any answer on strikes:

the litigant made to pay costs because of his counsel's abstention has a right to be compensated by that counsel.

The responsibility is placed where the default lies. Read it with Ex-Capt. Harish Uppal v Union of India (2003), which two years later held outright that lawyers have no right to strike — this case is the step immediately before it, and Harish Uppal builds on it.

An ex parte order was passed against the respondent's adversary in circumstances arising from advocates abstaining from court during a strike. The question before the Court was whether the ex parte order should be set aside, and on what terms.

1. Should a party be relieved of an ex parte order occasioned by his advocate's participation in a strike or boycott?
2. On whom should the costs of that relief ultimately fall — the litigant, the adversary, or the advocate?
3. What is the duty of a court faced with a call by the Bar to abstain from work?

The ex parte order was set aside, but on terms, and the terms are the point of the case.

(1) No leniency to the defaulter; exemplary costs to the adversary. "In the light of the consistent views of the judiciary regarding the strike by the advocates, no leniency can be shown to the defaulting party and if the circumstances warrant to put such party back in the position as it existed before the strike. In that event, the adversary is entitled to be paid exemplary costs."

(2) And the advocate pays in the end. "The litigant suffering costs has a right to be compensated by his defaulting counsel for the costs paid." Sethi J added that "in appropriate cases the court itself can pass effective orders, for dispensation of justice with the object of inspiring confidence of the common man in the effectiveness of judicial system." On the facts, the respondent was "entitled to the payment of costs, consequent upon the setting aside of the ex-parte order passed in his favour."

(3) No advocate may ask a court to stop working. Mutual respect between Bench and Bar is "the sine qua non for the efficient functioning of the solemn work carried on in courts of law. But that does not mean that any advocate or a group of them can boycott the courts or any particular court and ask the court to desist from discharging judicial functions. At any rate, no advocate can ask the court to avoid a case on the ground that he does not want to appear in that court."

(4) A rebuke to the courts themselves. Sethi J was blunt about judicial complicity: "Though a matter of regret, yet it is a fact, that the courts in the country have been contributory to the continuance of the strikes on account of their action of sympathising with the Bar and failing to discharge their legal obligations obviously under the threat of public frenzy and harassment by the striking advocates." He recorded his disagreement with Thomas J on this point — Thomas J had taken the view that the courts had not been sympathising with the Bar. Note the difference of opinion; it is the kind of detail that distinguishes a good answer.

(5) On the profession. "If people lose confidence in the profession on account of the deviant ways of some of its members, it is not only the profession which will suffer but also the administration of justice as a whole. The present trend unless checked is likely to lead to a stage when the system will be found wrecked from within before it is wrecked from outside."

• Mahabir Prasad Singh v Jacks Aviation Pvt Ltd (1999) 1 SCC 37 — "Judicial function cannot and should not be permitted to be stonewalled by browbeating or bullying methodology, whether it is by litigants or by counsel. Judicial process must run its even course unbridled by any boycott call of the Bar, or tactics of filibuster adopted by any member thereof." It also states the professional answer for counsel who genuinely will not appear: "If any counsel does not want to appear in a particular court, that too for justifiable reasons, professional decorum and etiquette require him to give up his engagement in that court so that the party can engage another counsel." Retaining the brief while abstaining is the wrong the Court condemns.
• Brahma Prakash Sharma v State of U.P. [1953] SCR 1169 — a Constitution Bench held that a resolution of a Bar Association expressing want of confidence in judicial officers amounted to scandalising the court and so to contempt.
• In re Tarini Mohan Barari AIR 1923 Cal 212 — a Full Bench held that pleaders deliberately abstaining from court as part of a concerted boycott were not justified; they owed duties to their clients in pending matters and an obligation to cooperate in the orderly administration of justice.
• American comparison: FTC v Superior Court Trial Lawyers Association — the US Supreme Court, speaking through Stevens J, held that attorneys who boycotted the courts to obtain favourable legislation had no First Amendment protection, the boycott being a restraint of trade under s. 1 of the Sherman Act. Useful for a comparative paragraph: the right to free expression does not license withdrawal of professional service.

A court must not abstain from its work because the Bar has called a strike, and no advocate may ask it to. Where an order is passed because counsel abstained, relief against that order may be given only on terms of exemplary costs to the adversary, and the litigant who pays those costs is entitled to be compensated by the defaulting advocate.

• Direct question: Have advocates a right to strike? Discuss. Trace the line: Tarini Mohan Barari (1923) → Mahabir Prasad Singh (1999) → Ramon Services (2000) → Harish Uppal (2003), which holds flatly that there is no such right, and that the remedy for grievances is representation, not abstention.
• Problem question pattern: counsel does not appear owing to a strike; an ex parte decree follows; the client applies to set it aside. Grant relief if justice requires, but impose exemplary costs, and say expressly that the client may recover them from the advocate.
• On Bar–Bench relations: use Brahma Prakash Sharma for the contempt dimension — a Bar resolution against judicial officers is scandalising the court — and this case for the everyday harm strikes do to litigants.
• A sentence worth reproducing: "no advocate can ask the court to avoid a case on the ground that he does not want to appear in that court."