Holding

A judge is not required to recuse himself for prior advocacy unless the litigant brings the fact to his notice, but the orders were set aside to preserve the appearance of justice.

Summary

The landlord filed an eviction suit against the tenant, which was upheld by the Rent Controller and affirmed by the appellate authority. The landlord then sought revision under Section 15(5) of the East Punjab Rent Restriction Act, 1949, but a single High Court judge dismissed the revision. The tenant filed a review petition alleging that the same judge had previously acted as counsel for the landlord in an earlier case and should have recused himself. The review was dismissed because the tenant had not brought the prior representation to the judge's notice. The Supreme Court held that a judge is not obligated to recall past advocacy unless the litigant informs him, and therefore the review dismissal was proper. However, to preserve the appearance of justice, the Court set aside the judge’s orders and restored the revision petition for fresh hearing before another judge, imposing costs on the tenant. The appeals were allowed, and the revision case was reinstated subject to payment of costs.

Issues considered

Whether a judge who previously appeared as counsel for a party must recuse himself from a later case involving the same parties without being put on notice.
Whether the review petition challenging the judge’s hearing can be dismissed on the ground that the litigant failed to raise the conflict of interest.
Whether the orders of the single judge may be set aside on the principle that justice must be seen to be done.

Subjects

landlord-tenantevictionrevision petitionreview petitionjudicial recusalconflict of interestEast Punjab Rent Restriction Actcostsjustice seen to be done

Judgment

A MOHAN LAL AGGARWAL --
v.
A TINDER MOHAN KHOSLA

MARCH 12, 2004
'
B
·-
[R.C. LAHOTI AND DR. AR. LAKSHMANAN, JJ.]

Administration of Justice:

Advocate elevated as High Court Judge-Deciding a case ofparties, on
c behalf of one of whom he had appeared as a counsel in a revision-Duty of
litigant to spea~-landlord-tenant dispute-Eviction oftenant ordered by Rent
-I
Controller and confirmed by appellate authority-Revision oftenant dismissed
by Single Judge of High Court-Review petition by tenant contending that the
Single Judge who dismissed the petition, before his elevation had argued a
D revision on behalfofthe landlord and, therefore, he should not have heard the
revision petition-Review dismissed-Held, it is not the case of the tenant that
the Judge, whilst at the Bar had at any time appeared for the landlord at the
trial or was personally known to him-The Judge cannot be expected to have
remembered unless reminded that he had been a counsel for any of the parties
at some stage in some litigation between these very parties-The tenant should
E have told his counsel that in the event of the revision petition coming up for
hearing before the Judge concerned he should bring the fact to the notice of
the Judge-This must be taken as a duty to speak on the part of the litigant ---
failing which he cannot.be heard to raise grievance if the result ofthe litigation
goes against him-The Judge was right in hearing and deciding the revision
on merits when it was argued before him without any demur and without
F
reclusion from the Judge being sought-Nor any fault can be found even with ~

the view taken by the single Judge in dismissing the review petition-However,
on the principle that justice should not only be done but also seen to have
been done, the two orders passed by the single Judge are set· aside and the
revision petition is restored for hearing afresh before the High Court albeit
G by another Judge-But the appellant must pay costs for his conduct-East
Punjab Rent Restriction Act, 1949~s. 15(5)-Revision.

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1571-1572
~
\,.
of 2004.

H 1174
--
M.L. AGGARWAL v. A.M. KHOSLA 1175

~
From the Judgment and Order dated 2.12.2003 and 8.L2004 of the A
Punjab and Haryana High Court in C.R. No. 5618/2003 and R.P. No. 6/2004
~ in C.R. No. 5618 of 2003.

R.C. Mishra and Ms. Meera Agarwal for the Appellant.

R.K. Talwar, Amit Talwar and S.L. Aneja for the Respondent. B
The following Order of the Court was delivered :

Respondent has made appearance on caveat and takes notice.

-
~
Leave granted.

We are in a dilemma. Whether we allow or dismiss the appeals it would
c
be an unpleasant duty done.

A brief factual backdrop. The suit premises are situated in Jalandhar
city. The respondent is the landlord and appellant is the tenant. On 15.4.1996, D
the respondent initiated proceedings for eviction of the appellant from the
suit premises on the ground that the premises were required bona fide to.
satisfy the requirement of the respondent and his family members. On
24.5.2000, the Rent Controller directed the appellant to be evicted. An appeal
preferred by the respondent came to be dismissed by the Appellate Authority.
The respondent filed a revision petition in the High Court under Section E
15(5) of East Punjab Rent Restriction Act, 1949. The learned single Judge
before whom the matter came up for hearing on admission seems to have
heard the learned counsel for the petitioner with patience and dealing with all
the pleas raised before him directed the revision to be dismissed by a speaking
order as, in his opinion, it was not a fit case warranting interference in
F
exercise of revisional jurisdiction of High Court. However, the appellant was
allowed six months time for vacating the premises. The appellant then moved
an application seeking review/recall of the revisional order of the High Court
on the ground that at one stage of the litigation between the same parties the
learned single Judge, who heard and decided the revision, had appeared in
the High Court as counsel for the landlord-respondents and, therefore, he G
should not have heard the revision petition. The review petition was filed by
changing the counsel. The learned single Judge dismissed the review petition
t stating that this fact was not brought to his notice when he heard the revision
~1
and decided the same on merits. Feeling aggrieved by the revisional order
dated 2.12.2003 and the subsequent order dated 8.1.2004 dismissing the
H
1176 SUPREME COURT REPORTS [2004] 2 S.C.R.

A review/recall petition these two appeals have been filed by special leave.
The facts of this case call for some observation being made in the -
interest of preventing ripples being caused in the stream of justice by
unscrupulous litigants indulging into misadventure - playing the game of
hind and seek; first, willingly submitting to the hearing by a Judge and taking
B a chance of success and then turning around seeking recall of inconvenient
decision when they have failed. It appears that between the same parties there
was some litigation in the year 1994-95 pertaining to restoration of amenities
under Section JO read with Section 19 of the E.P. Rent Restriction Act 1949.

C
The learned single Judge while practising at the Bar had argued a revision on
behalf of the respondent but the same was dismissed. Between the date of
decision of that earlier revision and the date of hearing in the present revision
petition a long period of more than eight years had elapsed. It is not the case
-
(
of the appellant that the learned Judge, whitst at the Bar had at any time
appeared for the respondent at the trial or was personally known to him. The
learned Judge cannot be expected to have remembered unless reminded that
D he had been a counsel for any of the parties at some state in some litigation
between these very parties. If only the appellant would have brought this fact
to the notice of the learned Judge at or before the heating we have no reason
to doubt that the learned Judge would have certainly reclused himself from
hearing the revision. But that was not done by the appellant and he must,
E therefore, bear burden of the fault entirely on himself.

The appellant must have known that the counsel who had appeared for
his opponent in some litigation between these very parties and touching these
very premises was elevated and was now a Judge in the High Court in which
he was filing the revision. He should have told his counsel that in the event
p of the revision petition coming up for hearing before such Judge he should
bring the fact to the notice of the learned Judge. This must be taken as a duty
to speak on the part of the litigant failing which he cannot be heard to raise
grievance if the result of the litigation goes against him. The appellant would
have never filed the review/recall petition if only be would have succeeded
in the revision. He became wiser only after the revision was dismissed. We
G cannot countenance such activity of misadventure on the part of the litigants
almost laying traps for the Judges who are already overburdened with heavy
list of the matters for hearing and many a times have to rush through to clear
the day's cause list. In our opinion, the learned Judge was right in hearing
and deciding the revision on merits when it was argued before him without
H any demur and, without seeking reclusion from the Judge. We cannot find
M.L. /\GGARWAL ,._ A:M. KHOSLA 1177

fault even with the view taken by the learned single Judge in dismissing the A
review petition.

However still, on the principle that justice should not only be done but
also seen to have been done, we are inclined to set aside the two orders
passed by the learned single judge and restore the;revision petition for hearing
afresh before the High Court albeit by another Ju~ge. However, the appellant B
must pay costs for his conduct which has resulteq in the valuable time of the
Court being wasted and the respondent being df:agged before this Court in
these proceedings.

The appeals are allowed. The impugned order dated 2.12.2003 in Civil C
Revision No. 5618/2003 and the order dated 8.1.2004 passed in Review
Petition No. ·1/2004 are set aside subject to the condition that the appellant
shall within a period of four weeks from today deposit in the High Court an
amount of Rs. 25,000 by way of costs and on such costs being deposited,
the revision petition shall stand restored and taken up for hearing expeditiously.
From out of the amount so deposited, an amount of Rs. 20,000 shall be made D
over to the State Legal Aid Services Authority and an amount of Rs. 5,000
shall be paid to the respondent. We make it clear that failure on the part of
the appellant to deposit the amount of costs as directed hereinaBove shall
forfeit his right of hearing and the Civil Revision in the High Court shall
remain dismissed. For a period of four weeks from foday, the status quo in
the matter of possession over the suit property shall be maintained. E
R. P. Appeals allowed .

...... )