Bibhu Ranjan Das Vs. Hakim Ali and others, 53 DLR (2001) 114

Case No: Civil Revision No. 1634 of 1991

Court: High Court Division,,

Citation: 53 DLR (2001) 114

Case Year: 2001

Appellant: Bibhu Ranjan Das

Respondent: Hakim Ali and others

Subject: Revisional Jurisdiction,

Delivery Date: 2000-06-13

Supreme Court of Bangladesh
High Court Division
(Civil Revisional Jurisdiction)
 
Present:
AKM Shafiuddin J
 
Bibhu Ranjan Das
…………Petitioner
Vs.
Hakim Ali and others
…………Opposite Parties
 
Judgment
June 13, 2000.
 
Code of Civil Procedure (V of 1908)
Sections 115 & 151
Code of Criminal Procedure (V of 1898)
Section 561A
The High Court Division as the Court of revision must be deemed to have power to see that a court below does not unjustly take away the character of a party or of a witness or a counsel before it.
 
Cases Referred To-
Punjab Ali Pramanik and others Vs. Mohd Mokarram Hossain, 29 DLR (SC) 185; Foroze Khan Noon Vs. State 1958 PLD (SC) 333; Fazal Illahi Vs. Crown (1953 PLD FC 35); State of Assam Vs. Rangu Muhammad and others (AIR 1967 (SC) 903; 28 DLR (SC) 185; Fisher Vs. Owen 1878 8CD 645; Cracknall Vs. Janson 1879 11 CD 1; (1891) 15 Born 488; Zamindar of Tuni Vs. Bennayya (1899) 22 Mad 155; Hukum Chand Boid Vs. Kamalanand Singh (ILR Vol 33 927); Fazal Ellahi Vs. Crown 5 DLR (FC) 44 = PLD 1958 (FC) 35; Naba Vs. Emperor (1911 LC 577); Panchan Banerji Vs. Upendra Nath Bhattacharjee AIR 1927 Allahabad 193; Pak Flotilla Co. Ltd Vs. Abdus Salam & others, 14 DLR 23, Wali Ahmed Vs. State, 17 DLR 101 and MS Nurul Alam Vs. State, 38 DLR 333.
 
Lawyers Involved:
Nikhilesh Dutta, Advocate- For the Petitioner.
Not represented — the Opposite Parties.
 
Civil Revision No. 1634 of 1991
 
JUDGMENT
 
AKM Shafiuddin J.
 
1. This is an application under section 115(1) of the Civil Procedure Code. It is directed against the judgment and order dated 20-03-19991, passed by the learned Assistant Judge, Muradnagar, Comilla in the Miscellaneous Case No. 17 of 1990 arising out of the Title Suit No. 49 of 1986. The present petitioner was not a party, either in the Title Suit or in the Miscellaneous Case. He was engaged in those as a lawyer, instructed by the plaintiff opposite party No. 8. The suit was dismissed for want of prosecution. Subsequently, upon an application filed by the plaintiff opposite party No. 8 under Order IX, rule 9 of the Civil Procedure Code, it was ordered to be restored to its original file and number in the Miscellaneous Case No. 17/1990. While ordering restoration of the suit the learned Assistant Judge adversely commented on the conduct and character of the petitioner, who was then appearing as Advocate for the plaintiff. This has given the petitioner his cause of grievance to move this Court with the instant Civil Revision for expunction of the adverse remarks against him as contained in the impugned judgment and order.
 
2. The opposite party No. 8, as the plaintiff, instituted the Title Suit No. 49/86 in the Court of the Assistant Judge, Muradnagar, impleading the opposite party Nos. 1-7 as the defendants. He filed the suit for a declaration of his title to and possession over the suit land. The defendant opposite party Nos. 1-7 contested the suit by filing a written stat the suit was fixed for final hearing on 1-8-90. However, on that day the learned Advocate for the plaintiff, the petitioner of the instant Civil Revision, was not ready to proceed with the hearing. It was, according to him, due to the fact that on the previous day he had conducted hearing of 2 Cases and did not return home until very late in the evening, at 8 PM. He could not then prepare the Case, as he felt unwell. The plaintiff, therefore, submitted his applications for an adjournment of the hearing on that day. In fact, he submitted 2 adjournment applications, both couched in almost identical terms. The learned Assistant Judge rejected the applications and asked the plaintiff to get ready to proceed with the hearing of the suit. However, when the suit was called on for hearing neither the plaintiff nor his learned Advocate, the petitioner, appeared to prosecute it. As a result it was dismissed for default under Order IX, rule 8 of the Civil Procedure Code, which reads as follows:
 
“Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which Case the Court shall pass decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.’’
 
3. Order IX, rule 8 has imposed an obligation on the trial Court to dismiss a suit, if the plaintiff does not appear when it is taken up for hearing, unless the defendant admits the plaintiffs claim or part thereof. For such nonappearance of the plaintiff to prosecute his suit, the Rule provides, “…………..the Court shall make an order that the suit be dismissed”. The defendants in this Case did not admit the plaintiffs claim. Instead they filed a written statement in order to contest the suit. At the time the suit was taken up for hearing neither the plaintiff nor his lawyer appeared to prosecute it. So, the trial Judge dismissed the suit under Order IX, rule 8 of the Civil Procedure Code. I, therefore find no fault with the learned Assistant Judge for dismissing the suit for want of prosecution. It is true that the plaintiff had submitted applications for an adjournment of the hearing, but no adjournment was granted. A party to a suit, by merely submitting an application for an adjournment, is not relieved of his obligation to make himself present at the hearing. The adjournment may or may not be granted. A party to a legal dispute cannot claim an adjournment of a hearing as a matter of right. He cannot expect to have his application for an adjournment granted as a matter of course. If his prayer for an adjournment is rejected he must make himself present at the hearing to defend his interest in the suit. If he fails to do so the suit may be, if he is the plaintiff, dismissed for default, and if he is the defendant decreed ex parte. Order IX, rule 8 of the Civil Procedure Code provides for the dismissal of a suit for want of prosecution, while Order IX, rule 6 has made provision for an ex parte decree for the default of the defendant.
 
4. The Title Suit No. 49/1986 was dismissed for default on 1-8-90. On 14-8-90 the plaintiff submitted an application under Order IX rule 9 of the Code of Civil Procedure, for restoration of the suit to its original file and number after setting aside the order of dismissal. This is the Miscellaneous Case No.17/90. Order IX, rule 9 provides, “Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or other as it thinks fit, and shall appoint a day for proceeding with the suit.
 
5. The learned Assistant Judge felt that the plaintiff had failed to show sufficient cause for his absence from the Court when the suit was called on for hearing on the appointed day. So he concluded that it was not a fit Case to be ordered for restoration under Order IX rule 9 of the Civil Procedure Code. Nevertheless he- ordered restoration of the suit. He did so by invoking the inherent jurisdiction of the Court preserved by and mentioned in section 151 of the Civil Procedure Code. The section says:
 
“Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the Court”.
 
The learned Assistant Judge held the learned Advocate for the plaintiff, the present petitioner and not the plaintiff himself, responsible for the failure to prosecute the suit. He, therefore, concluded that the plaintiff should not suffer for the fault of his lawyer. Consequently, by his Order No. 102 dated 20-3-1991 he allowed the Miscellaneous Case No. 17/90 and ordered restoration of the Title Suit No. 49 of 1986, to its original file and number, upon payment of a cost of Taka 1,500.00. This is the impugned order, which is under challenge in this Civil Revision. The petitioner cannot have any objection for restoration of the Title Suit No.49/86 as that is in the interest of his client and, in fact, he himself moved the restoration petition. He has felt aggrieved as the impugned judgment and order contains some derogatory remarks against him personally. The petitioner has sought an expunction, by this Civil Revision, of the derogatory remarks from the impugned judgment and order.
 
6. In passing the impugned judgment and order, the learned Assistant Judge was highly critical of the petitioner. He observed,
 
“এই প্রকৃতির বিজ্ঞ আইনজীবিকে কর্তব্য কর্মের সহিত প্রতারনা করার অভিযোগে অভিযুক্ত করাই যুক্তিসংগত বলিয়া মনে করি এবং পেশাগত দায়িত্ব পালনে খামখেয়ালি পূর্ণ ও আদালতের আদেশের সহিত লুকোচুরি খেলার মাধ্যমে অবজ্ঞা প্রদর্শনের দুঃসাহসের সহিত তুলনা করা যায় যাহা আদালত সহজে গ্রহন করিতে পারে না। তবে কথিত আইনজ়ীবির কুটকৌশলের জন্য পক্ষগণ ক্ষতিগ্রস্ত হইবে তাহাও ঠিক নহে।
এই ক্ষেত্রে কথিত আইনজীবিকে দৃষ্টান্তমূলক ক্ষতিপূরণ প্রদানের  মাধ্যমে প্রার্থীর দরখাস্তটি মঞ্জুর করা যাইতে পারে দেওয়ানী কার্যবিধি আইনের ১৫১ ধারার ক্ষমতা আদালত স্বইচ্ছায় প্রয়োগ করে।”
আদেশ হইলো যে,প্রার্থীপক্ষের অত্র মিথ্যা মোকদ্দমা ১৫০০.০০(পনেরো শত) টাকা খরচা প্রদান সাপেক্ষে মঞ্জুর করা হইলো। আগামী ৭ দিনের মধ্যে খরচের টাকা পরিশোধ করিলে প্রার্থীর মোকদ্দোমা পুরাতন নাম্বারে পুনঃ বহাল হইবে।এখানে উল্লেখযোগ্য যে উক্ত খরচের টাকা প্রার্থী তাহার নিয়োজিত আইনজীবির ব্যাক্তিগত খাত হইতে সংগ্রহ করিয়া তাহা পরিশোধ করিতে পারিবে।”
 
7. The passage and the ordering portion of the impugned judgment and order dated 20-3-91, quoted in the preceding paragraph, shows that the learned Assistant Judge used some strong words and expressions to mark his disapproval of the petitioners conduct and to censure the latter. It has been suggested in the ordering portion that the plaintiff may recover the cost awarded against him from his lawyer, the present petitioner. This has given the petitioner his cause of grievance to move this Court, with the instant Civil Revision under section 115 (1) of the Civil Procedure Code. He prayed for an expunction of the passage, quoted above from the impugned judgment and order. He also sought deletion from the ordering portion of the impugned judgment and order the suggestion that the plaintiff may recover the cost awarded against him from his lawyer.
 
8. Rule Nisi was issued by this Court on 9-6- 91, ‘to show cause as to why the impugned judgment and order should not be set aside or such other or further order or orders should not be  passed as to this Court may seem fit and proper’. It seems, however, that the Rule Nisi issued does not correspond to the prayer of the petitioner contained in his application for the Civil Revision.
 
9. It appears that in passing the impugned judgment and order the learned Assistant Judge has not properly appreciated the facts of the Case as well as the law applicable to it. He has gone wrong with his reasoning as well. The Title Suit No. 49/1986 was fixed for hearing on 1-8-90. On that day the f moved 2 applications for an adjournment of the hearing before the learned Assistant Judge. So, the petitioner was not ill and the learned Assistant Judge was right to conclude so, but he was wrong in his thinking that the petitioner claimed that he was ill. The petitioner, in fact, made no such claim in his petition. Nor did he express his nobility, on the ground of his alleged illness, to conduct the hearing of the suit in question. All that was said in his applications for an adjournment was that the petitioner on the previous evening had returned home very late in the evening not until 8- 00 PM and he could not prepare the Case as he was unwell. The words used by him in his application are, “স্বাস্থ্য খারাপ থাকার দরূণ” and by using these words the petitioner was not claiming that he was ill to attend the Court or to conduct hearing. The words are to be read in the context in which they were used and not to be considered in isolation. The words have been linked with the task of preparation of the Case and are preceded by the words, “গতকাল রাত্র ৮ ঘটিকার সময় বাসায় পৌছিয়া”. To my mind, the petitioner by using the words, “স্বাস্থ্য খারাপ থাকার দরূণ” was not claiming to be suffering from any illness. He was simply saying that as he had returned home late at 8-00 PM on the previous evening he was then too exhausted to undertake further work and prepares the Case for hearing on the following day. The learned Assistant Judge in the impugned judgment and order said, to borrow his words, বিজ্ঞ আইনজীবি ধার্য তারিখে অসুস্থ ছিলেন এটা প্রমাণিত হয় নাই। যেমন তাহার অসুস্থতার স্বপক্ষে কোন এম.সি দাখিল হয় নাই। “From the conclusion, drawn by the learned Assistant Judge, it seems that he was under the impression that the petitioner had claimed to be ill on the day of the hearing of the suit and adjournment of the hearing was sought on the ground of such illness. But this is not borne out by the records as disclosed in the adjournment applications Annexures “A” and “Al” to the instant Civil Revision. From the tenor of the impugned judgment and order if seems that the learned Assistant Judge condemned the petitioner as a liar and a cheat, but the facts and materials on record do not warrant such a condemnation. Furthermore, the passage of the judgment to which the petitioner has taken objection was not necessary for the determination of the learned Senior Assistant Judge.
 
10. The learned Assistant Judge also went wrong to co and again, without any evidence or material on record, “এক্ষেত্রে প্রার্থী কোনটাই করেন নাই বরং তিনি তাহার নিয়োজিত সুস্থ্য আইনজীবির পরামর্শে ইচ্ছাকৃতভাবে বিচার কার্য বিঘ্নিত করার জন্য প্রতিদ্বন্দিতা হইতে ও শুনানী হইতে বিরত থাকিয়াছেন।” The learned Assistant Judge thereby imputed improper conduct unbecoming of a lawyer on the part of the petitioner.
 
11. If the Rule is made absolute this may well serve the purpose of the petitioner, but will cause injustice to the plaintiff. It, the impugned judgment and order is set aside, with if, no doubt, will go the observation and the ordering portion of the impugned Judgment and order, the expunction of which has been sought by the petitioner. However, if the impugned judgment and order is set aside in its entirety, it will activate and bring to life the dismissal order dated 1-8-90. The Title Suit No. 49 of 1986 will then stand dismissed. Possibly, the petitioner does not intend such a consequence to follow, nor will it be fair to allow it to follow. In such an event the plaintiff will be without a remedy to redress the wrong suffered by him, despite the fact that the trial Court did not hold him responsible for allowing the suit to be dismissed for default. It is clear from the wording of Order IX rule 9 that the plaintiff cannot now bring a fresh suit in respect of the same cause of action. Mr. Nikhilesh Dutta, the learned Advocate for the petitioner, has recognised the difficulties which will result if the Rule is made absolute. He, therefore, instead of inviting me to make the Rule absolute, has confined his submission to the question of expunction of the adverse remarks against the petitioner contained in the impugned judgment and order. He has also sought deletion of the suggestion that the plaintiff may recover the cost awarded against him from the petitioner.
 
12. Mr. Dutta submits that the observation and the remarks contained in the impugned judgment and order are based on surmise and conjecture, having no materials on record to substantiate the same. It is unwarranted, bad in law and, as such, liable to be expunged. He further submits that the learned Assistant Judge ought to have adjourned the hearing when there were before him applications for an adjournment on the ground that the learned Advocate for the plaintiff could not prepare the Case for the hearing on the previous night due to his ill health. No one has appeared on behalf of the opposite parties to oppose this Rule.
 
13. I have carefully considered the submissions of Mr. Dutta, along with the impugned judgment and order, the application of the instant Civil Revision and the Annexures to the Civil Revision application. The petitioner has filed his application under section 115 (1) of the Civil Procedure Code, which reads as follows:
 
“The High Court Division may call for the record of any Case which has been decided by any Court subordinate to the High Court Division and in which no appeal lies thereto, and if such subordinate Court appears to have committed any error of law resulting in an error in the decision occasioning failure of justice, the High Court Division may make such order in the Case as it thinks fit.” (Emphasis supplied)
 
I have underlined the core words of the section, which have embodied in those 3 conditions for the exercise of the jurisdiction by this Court under section 115 (1) of the Civil Procedure Code. These are firstly, a commission of an error of law by the subordinate Court in arriving at its decision secondly; it must have arrived at a wrong decision due to the error of law committed by it. Finally, the decision must cause a miscarriage of justice. In the absence of any one of these 3 conditions, the power under the section will not be available to and become exercisable by this Court. It therefore follows that, if we consider exercising the jurisdiction conferred upon us under section 115 (1) of the Civil Procedure Code, we should pose for ourselves 3 questions. This first of these questions is “whether, in passing the impugned judgment and order, the Subordinate Court has committed any error of law.” If the answer to this question is in the negative, we need not inquire further. We shall be obliged to reject the application. This Court cannot in the exercise of its jurisdiction under section 115 (1) of the Civil Procedure Code, interfere with the decision of the Subordinate Court, if the latter commits no error of law. If however, the Court below commits an error of law, we should then look at the second question, “Whether owing to the error of law committed by the Court below, it has also arrived at an erroneous decision. “If the answer to this question is in the negative, there will, again, be no scope for interference. The third and the final question to be addressed is that, “Whether there has been a failure of justice. The Court below may have committed an error of law. It may have arrived at a wrong decision, but unless the decision has also resulted in a failure of justice, this Court will not be justified in interfering with the judgment and order passed by the Court below. However, I can hardly imagine a situation when there will not be a failure of justice if the Court below commits an error of law and arrives at a wrong decision. Nevertheless, the prescription of law is against interference by the Court on such rare occasions, if any, when there will not be any, injustice caused to a petitioner, despite the fact that the Court below has committed an error of law and, in consequence, has arrived at an erroneous decision.
 
14. The suit in question was fixed for preemptory hearing on 1-8-90. Applications for and of the hearing were unsuccessful. The plaintiff was asked to get read for the hearing. However, when the suit was called on for hearing no one appeared to prosecute it. The plaintiff’s subsequent application under Order IX, rule 9 for restoration of the suit is to be considered against this background. The learned Assistant Judge seems to have accepted the fact that the plaintiff was present in the Court premises with his, witnesses and was ready to proceed with the hearing, but the hearing could not take place as the plaintiff’s lawyer could not pre the Case to prosecute it. The learned Assistant Judge, therefore, held the petitioner, though not the plaintiff, responsible for non-prosecution of the suit on the appointed day.
 
15. The inherent jurisdiction of the Court under section 151 of the Civil Procedure Code can be invoked subject to the rule that if the Code contains specific provisions, which would meet the necessities of the Case, such provisions should be followed, instead of invoking the inherent jurisdiction of the Court. The Privy Council in Gokul Mandar Vs. Pudinanund Singh (29 1A 196) observed, “…………… the essence of a Code is to be exhaustive on matters in respect of which it declares the law, and it is not the province of a judge to disregard or go outside the letter of the enactment according to its true construction. “Similarly, our Appellate Division after reviewing the authorities observed in Punjab Ali Pramanik and others Vs. Mohd Mokarram Hossain, reported in 29 DLR (SC) 185, “It appears to us that the preponderant judicial view which emerges out of the authorities referred to above and with which we find ourselves in agreement, is that, the Court should not presume the existence of inherent power to do that for which specific provision has been made by a statute and should not invest itself with such jurisdiction for the purpose of getting round the express provision of law.” The inherent power under section 151 of the Civil Procedure Code must be additional and complementary to the powers expressly conferred under other provisions of the Code and cannot be in conflict or inconsistent with express provision of law. The preservation of the inherent power would not enable Courts to extend the scope of power specifically conferred upon them by other provisions of the Civil Procedure Code. Section 151 cannot be used so as to make it supplementary to section 115 of the Civil Procedure Code. Order IX rule 9 expressly deals with the question of restoration of a suit dismissed for default. If a Case is not a proper one for restoration under Order IX, rule 9, the Court’s inherent power under section 151 of the Civil Procedure Code cannot provide authority for its restoration. On the other hand, if in the opinion of the Court a Case is a good one for restoration it is not necessary for the Court to have recourse to the inherent power of the Court under section 151 of the Civil Procedure Code to order restoration of the suit. In such Case Order IX, rule 9 of the Civil Procedure Code will provide the Court with sufficient authority to do the job. A legal system is unitary in character. In it different provisions may deal with different problems, provide answers to different questions but they do not stand one in relation to another in isolation. They do not take mutually hostile and antagonistic stand. Together they constitute the whole system, the integral whole from which the individual provisions take their colour, derive their power and. authority and receive their validity. If a suit does not qualify for restoration under Order IX rule 9 the suit cannot be ordered to be restored by the Court in the exercise of its inherent power under section 151 of the Civil Procedure Code.
 
16. I have no hesitation to conclude that the learned Assistant Judge erred in law in having recourse to section 151 of the Civil Procedure Code for ordering restoration of the Title Suit No. 49 of 1986 by the impugned judgment and order. He however, as I have stated earlier, could and should have ordered the restoration of the Suit under the authority of Order IX, rule 9 of the Civil Procedure Code. He misread and misappreciated the evidence and went wrong with his reasoning. He followed the wrong route, but in the end arrived at the correct decision. As the decision arrived at by him is not erroneous, one of the 3 conditions for interfering with the decision of the subordinate Court under section 115(1) of the Civil Procedure Code is absent. Further, the impugned judgment and order there has not caused a failure of justice between the parties to the dispute. Though as a result of the restoration of the suit the defendant will be deprived of the advantage gained by him due to a fault on the part of the lawyer of the plaintiff, it is not a real loss by him. He had no moral claim to the advantage temporarily gained by him over his adversary due to a fault on the part of the latter’s lawyer. A party to a legal dispute is entitled to enjoy the right granted to him under a positive provision of a law, but an advantage gained due to latehes on the part of his adversary is not a right founded upon any positive provision of law. In my opinion, the impugned judgment and order has caused no injustice to either party to the suit, to warrant interference by this Court in the exercise of its revisional jurisdiction under section 115 (1) of the Civil Procedure Code. I shall, therefore, not be justified in interfering with the decision of the Court below to make the Rule absolute. I am inclined to discharge the Rule.
 
17. This brings me to the final question, whether this Court is competent to expunge derogatory remarks from the judgment and order passed by a subordinate Court. If the answer to it is affirmative, then there will arise a second question. This is, whether the facts and circumstances of the Case warrant interference and expunction by this Court of a part of the impugned judgment and order passed by the learned Assistant Judge to which the petitioner has taken objection.
 
18. Our statutes do not contain provision dealing expressly with the question of expunging of an offending part from a judgment. However, it is generally thought that the superior Courts of the Subcontinent, in the exercise of its inherent power under section 151 of the Civil Procedure Code and section 561A of the Criminal Procedure Code can expunge objectionable materials from the judgments and orders passed by the Courts below. Our Appellate Division as well as the Supreme Court of Pakistan and the Supreme Court of India have recognised their power to expunge objectionable material from the judgment and order of the subordinate Court.
 
19. The Supreme Court of Pakistan entertained an application under Article 160 of its Constitution from Mr. Malik Firoze Khan Noon, the then Prime Minister of Pakistan, for special leave to appeal against a decision of the Lahore High Court containing derogatory remarks against him. The Prime Minister was neither a party nor a witness in the proceedings before High Court but on his application the Supreme Court of Pakistan expunged the offending parts from the judgment and order passed by the Lahore High Court. Foroze Khan Noon Vs. State (1958 PLD (SC) 333. In doing so it followed its earlier decision of Fazal Illahi Vs. The Crown (1953 PLD (FC) 35 where it was observed if for the sake of doing complete justice in a matter it becomes necessary for the Court to examine its own records for the purpose of deleting matter there from, it will not allow itself to be deterred in the performance of that duty, by any consideration of its own dignity or of sanctity of its own records. However it may be mentioned that in these 2 Cases i.e. Supreme Court of Pakistan exercised its constitutional Power as the Apex Court of the country in order to do Complete Justice. Therefore, they will not serve as a direct authority for the High Court to expunge objectionable material from the judgment and order of the Court below in the exercise of the inherent power under either section 151 of the Civil Procedure Code or 561A of the Criminal Procedure Code. Article 104 of our Constitution has clothed our Appellate Division and not the High Court Division with power to do complete justice. However the Indian Supreme Court in State of Assam Vs. Rangu Muhammad and others (AIR 1967 (SC) 903, without referring to power to do complete justice, recognised its power to expunge objectionable remarks and laid down the test for exercising the power. They thought that it is an extraordinary power and can be exercised only when a clear Case is made out. Before exercising this power, the question to be considered, is, not whether another judge would have made those particular remarks, but whether the judge making those remarks has acted with impropriety. The Case is an authority for the proposition that the Indian Supreme Court has power to expunge derogatory remarks from the judgment of the subordinate Court, but does not say whether their High Court, are also invested with similar powers. Our Appellate Division in the Case of Amirul Islam Vs. The Hon’ble Judges of the High Court Division (SC) and another, reported in 28 DLR (SC) 185, has recognised that our High Court Division is empowered to expunge objectionable remarks from its own judgment. However, the decision does not say whether our High Court is also competent to expunge from the judgments of the subordinate Court a portion to which an objection is taken.
 
20. Almost all the High Courts of the Indian sub-continent have exercised the power of expunction of objectionable passage from the judgment of the subordinate Courts. The source of this power can be traced to English Common Law. The legal systems of the countries of our sub-continent have a common origin. They were introduced and developed by the English during their rule of the sub-continent and have been shaped after the English Common Law. “The Court has a duty”, says Selbourne LC “to discharge towards the public and the suitors, in taking care that its records are kept free from irrelevant and scandalous matter’. However, “Nothing can be scandalous which is relevant.” (Cotton IJ in Fisher Vs. Owen 1878 8CD 645). An application to strike out scandalous matter may be made by any person whether or not he is a party to the suit or personally affected by the scandalous matter (Cracknall Vs. Janson 1879 11 CD 1) re Cltvc Durant. These English authorities and the like shaped the contemporary judicial thinking of the sub continent. Thus in , the High Court of Bombay in 1891 refused to allow an application for bail contai1 defamatory allegation against a trying Magistrate to be filed (1891 15 Bom 488). Likewise, in Zamindar of Tuni Vs. Bennayya (1899) 22 Mad 155 the High Court of Madras ordered an objectionable passage to be expunged from a memorandum of appeal alleging partiality on the part of a judge whose decree was being challenged in the appeal. In Hukurn Chand Boid Vs. Kamalanand Singh (ILR Vol 33 927). Woodroffe J observed, “For my part I am always slow to believe that the Court’s power are unequal to the desire to order that which it believes to be just The Court has therefore, in many cases where the circumstances require it, acted upon the assumption of the possession of an inherent power to act ex debito justitiae and to do that real justice for the administration for which it alone exists.” This inherent power got its statutory recognition in section 151 of the Code of Civil Procedure. The section has already been quoted above. A section containing similar provision has been incorporated into our Criminal Procedure Code in section 561A of the Code of Criminal Procedure. The section reads as:
“Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court Division to make such orders or as may be necessary to give effect to any order under this Code, or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.”
 
21. In Naba Vs. Emperor (1911 LC 577). The Punjab Chief Court held that the High Court can on revision side expunge, “damaging remarks made against the character of a witness without sufficient trustworthy proof on the record. In Emperor Vs. Thomas Pellako (1912) 141C 643, the Chief Judge of the Lower Burma Chief Court held that the High Court has the power to order that irrelevant matter in the judgment of a lower Court should be expunged. In Panchan Banerji Vs. Upendra Nath Bhattacharjee AIR 1927 Allahabad 193 it was held that the High Court has inherent power to order a deletion of passages which are either irrelevant or inadmissible and which adversely affect the character of persons before the Court. The High Court as the Supreme Court of revision, must be deemed to have power to see that the Court below do not unjustly and without any lawful excuse take away the character of a party or of a witness or of a counsel before it. Such jurisdiction, however, can only be exercised when there is no foundation whatsoever for the remark objected to and not where it is a matter of inference from evidence. I have been able to lay my hands on 3 decisions in which our High Court Division has exercised its power of expunction of objectionable part from the judgment and order of the subordinate Court, under section 561A of the Criminal Procedure Code. These are, Director of Pak Flotilla Co. Ltd Vs. Abdus Salam & others, reported in 14 DLR 23, Wali Ahmed Vs. State, reported in 17 DLR 101 and MS Nurul Alam Vs. State, reported in 38 DLR 333. If this Court is competent to order expunction in a criminal case under section 561A of the Criminal Procedure Code, why should it not be competent to do so in a civil case under section 151 of the Civil Procedure Code The nature of the power under the two sections are identical. I, therefore, have no doubt in my mind that this Court has the power to expunge objectionable materials from the judgment and order passed by the subordinate Court.
 
22. As I have stated earlier, Mr. Datta, the learned Advocate for the petitioner, recognised the difficulties if the Rule is made absolute. He was very fair. He was not advocating and asking for the Rule to be made absolute. Instead, he pleaded that the aspersion cast upon the character and conduct of the petitioner by the learned Assistant Judge, in the facts and circumstances of the Case, was unwarranted and uncalled for and so, should be expunged. I agree with Mr. Dutta that the learned Assistant Judge was too severe with his criticism of the petitioner, which he could have avoided and those were not necessary for his determination. Interest of justice requires that there exists a good and harmonious relationship between a judge and an Advocate, who when instructed in a Case, becomes an officer of the Court Both a judge and an Advocate are engaged in serving the cause of and promoting justice. Together they form a team. The team spirit will be absent if their relationship is not founded upon mutual respect, trust and confidence. The learned Assistant Judge ought to have been temperate with his criticism of the petitioner and should have refrained himself from branding the petitioner, without any evidence on record, a cheat and a liar. The learned Assistant Judge ought to have appreciated the confidential nature of the Advocate-Client relationship, which admits no scope for others to butt in there. The learned Assistant Judge could have awarded cost against the petitioner, but he did not so. He awarded the cost against the plaintiff. He was right to award the cost, but it was not right for him to suggest that the plaintiff may recover the cost awarded against him from his lawyer. This amounts to undue interference with the client-advocate relationship. I am, therefore, inclined to order expunction of the passage of the judgment to which the petitioner has taken objection, together with the observation of the learned Assistant Judge in the ordering portion of the judgment,
 
“এখানে উল্লেখযোগ্য যে উক্ত খরচের টাকা প্রার্থী তাহার নিয়োজিত আইনজীবির ব্যাক্তিগত খাত হইতে সংগ্রহ করিয়া তাহা পরিশোধ করিতে পারিবে।”
 
23. I must make it clear that, I do not appreciate and approve that the petitioner should have stayed away from the hearing when his application for an adjournment was rejected. A judge should be accommodative to the learned members of the Bar and if possible accede to their prayer for adjournment on their personal ground, but the learned members of the Bar should also recognise that they cannot claim any adjournment of a hearing as a matter of right. True he receives his instructions from his client, but once engaged in a Case he becomes an officer of the Court and must make his services available to the Court. I cannot blame the learned Assistant Judge for rejecting the plaintiff’s applications for an adjournment in 1990. The suit was filed in 1986. The plaintiff’s Case has already been made out in his plaint. The petitioner, as the plaintiff’s lawyer, does not have to prepare the Case afresh every time it appears in the hearing list. If an Advocate is unable to prepare a Case for his client for presentation before the Court he should not, in the first place, have received the brief, or if he has received it, he should not hold into it.
 
24. To conclude this judgment, the Rule is discharged for the reason stated above. However, I direct that the following passage from the impugned judgment and order be expunged:
 
“এই প্রকৃতির বিজ্ঞ আইনজীবিকে কর্তব্য কর্মের সহিত প্রতারণা করার অভিযোগে অভিযুক্ত করাই যুক্তিসংগত বলিয়া মনে করি এবং পেশাগত দায়িত্ব পালনে খামখেয়ালী পূর্ন ও আদালতের আদেশের সহিত লুকোচূরি খেলার মাধ্যমে অবজ্ঞা প্রদর্শনের দুঃসাহসের সহিত তুলনা করা যায় যাহা আদালত সহজে গ্রহন করিতে পারে না। তবে কথিত আইনজীবির কূটকৌশলের জন্য পক্ষগণ ক্ষতিগ্রস্ত হইবে তাহাও ঠিক নহে।
এই ক্ষেত্রে কথিত আইনজীবিকে দৃষ্টান্তমূলক ক্ষতিপূরণ প্রদানের মাধ্যমে প্রার্থীর দরখাস্তটি মঞ্জুর করা যাইতে পারে দেওয়ানী কার্যবিধি আইনের ১৫১ ধারার ক্ষমতা আদালত স্বইচ্ছায় প্রয়োগ করে।”
 
It is further directed that the following observation of the learned Assistant Judge
 
“এখানে উল্লেখযোগ্য যে উক্ত খরচের টাকা প্রার্থী তাহার নিয়োজিত আইনজীবির ব্যাক্তিগত খাত হইতে সংগ্রহ করিয়া তাহা পরিশোধ করিতে পারিবে।”
 
Be expunged from the impugned judgment and order.
 
There will be no order as to cost.
 
Ed.