SURESH G. RAMNANI versus AURELIA ANA DE PIEDADE MIRANDA @ ARIYA ALVARES (DEAD THR. LRS) & ORS.

[2022] 10 S.C.R. 69

SURESH G. RAMNANI

AURELIA ANA DE PIEDADE MIRANDA @ ARIYAALVARES (DEAD THR. LRS) & ORS.

(Civil Appeal No. 8293 of 2022)

NOVEMBER 10, 2022

[ANIRUDDHA BOSE AND VIKRAM NATH, JJ.]

Judicial propriety: Application seeking hearing of review bya particular judge – Matter to be placed on the administrative sideor order to be passed on judicial side – Held: Once an applicationwas preferred by any of the parties that review may be heard bythe Judge who had decided the matter and had passed the orderfrom which the review arose, the matter ought to have been placedbefore the Chief Justice on the administrative side rather than orderbeing passed on the judicial side – Proviso to r. 3(1) of ChapterXXX of the Rules confers power on the Chief Justice to assign aparticular matter to Single Judge for hearing of the reviewapplication where the Single Judge concerned was not availablefor the time being by reason of being on leave or otherwise wherehe had ceased to sit at particular Bench – Chief Justice, being themaster of roster and being conferred with specific powers ofassigning review petitions in given circumstances under the Rules –On facts, the Single Judge ought not to have dealt with theapplication but should have referred the matter to be placed beforethe Chief Justice – In view thereof, direction to the Registry of theHigh Court to place the application on the administrative side beforethe Hon’ble Chief Justice for appropriate orders – Bombay HighCourt Rules – Chapter XXX, r 3(1) – Code of Civil Procedure, 1908– Ord. 47 r. 5.

Malthesh Gudda Pooja v. State of Karnataka (2011)15 SCC 330; Goel Ganga Developers India Pvt. Ltd. v.Union of India through Secretary Ministry ofEnvironment and Forests and others (2018) 18 SCC257; Maharashtra Housing & Development Authorityv. P V Anturkar (2009) 3 Mh Lj 266; Ratanlal Nahatav. Nandita Bose (1998) 3 CALLT 348 HC – referredto.

ACase Law Reference

(2011) 15 SCC 330(2018) 18 SCC 257

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8293Bof 2022.

From the Judgment and Order dated 16.07.2019 of the High Courtof Bombay at Goa in Misc. Civil Application No.526 of 2019 in CivilApplication (Review) No.7 of 2019 in Second Appeal No. 98 of 2013.

Huzafa Ahmed, Sr. Adv., Aman Vachher, Dhiraj, Ashutosh Dubey,CMrs. Anshu Vachher, Abhishek Chauhan, Akshat Vachher, M/s Vachherand Agrud, Advs. for the Appellant.

Nakul Dewan, Sr. Adv. and Chirag M. Shroff, Adv. for theRespondents.

The Judgment of the Court was delivered byD

VIKRAM NATH, J.

Leave granted.

2. This is defendant’s appeal assailing the correctness of the orderdated 16.07.2019 passed by Justice Prithviraj K. Chavan, rejecting theEMisc. Civil Application No.526 of 2019 in Civil Application (Review)No.7 of 2019. The order reads as under:

“Heard Mr. M. Amonkar, learned Advocate for the applicant.

2. In view of the clause (3) of Chapter 13 of the Bombay HighFCourt Appellate Side Rules prayer (a) of the application cannotbe granted.

3. Mr. N. Fernandes, learned Counsel submits that matter be placedafter 5th October, 2019.

4. At his request, stand over to 07.10.2019’’

3. bare reading of the impugned order extracted above wouldraise hundred doubts in the mind as to why this petition has been filed.However trivial, we may consider the issue at hand, but considering theseriousness and the length of arguments advanced by the learned SeniorCounsels, we were compelled to reserve the judgment and give seriousHthought to the issue.

FACTS

4. The respondent instituted suit on 11.01.1985 for declarationand permanent injunction registered as Regular Suit No.21 of 1985 inthe court of Civil Judge, Junior Division, at Margao titled “Mrs. AureliaAna da Piedade Miranda Araujo Alvares and others vs. Mr. GobindramJethanand Ramnani and others”. After the contest, the Trial Court decreedthe suit vide judgment and order dated 26.08.2003. The appellant preferredan appeal under section 96 of Code of Civil Procedure, 1908[1], in thecourt of District Judge at Margao, Goa, registered as Regular Civil AppealNo.83 of 2013, titled “Mr. Suresh G. Ramnani Vs. Mrs. Aurelia Ana daPiedade Miranda alias Araiyo Alvares and others”. This appeal initiallycame to be dismissed vide judgment and order dated 22.04.2008. Thesecond appeal under section 100 CPC was preferred by the appellantwhich came to be allowed vide judgment and order dated 02.03.2012.The High Court remanded the matter to the First Appellate Court for afresh decision. After remand the first appeal was again dismissed videjudgment and order dated 09.07.2012.

5. Aggrieved by the same, Second Appeal No.98 of 2013 waspreferred by the appellant in the High Court of Bombay at Panaji, Goa,titled “Mr. Suresh G. Ramnani vs. Mrs. Aurelia Ana da Piedade Mirandaalias Araiyo Alvares and others”. In the second appeal judgment wasreserved by Justice G.S. Patel vide order dated 10.12.2017. It would berelevant to note that Justice Patel at the relevant time was sitting at theGoa Bench of the Bombay High Court.

6. To complete the facts, it would be relevant to mention thatJustice Patel returned to the Principal Bench at Bombay on 24.10.2017.It is also an admitted fact that on 01.11.2017, certain clarifications weremade before the Court (Justice Patel) by the parties through Hybridmode regarding the issue of whether the parties are arriving at asettlement or not. The second appeal was allowed vide judgment andorder dated 30.01.2019. The judgment was delivered through virtual modeby the learned Judge while sitting at Bombay.

7. Review petition was filed by the respondent on 12.02.2019registered as Civil Review Application No. 7 of 2019. It was listed beforeJustice Nutan D. Sardessai and after hearing learned counsel for the

1 In short “CPC”

Areview applicant, the same was ordered to be admitted on 04.03.2019.The said order is reproduced below:

“Heard Shri A. Diniz, learned Advocate for the applicants.

2. Admit.”

B8. At this stage when the notice of the review was served, anapplication was moved by the appellant on 16.07.2019 registered as Misc.(Civil) Application No.526 of 2019 with the prayer that the Civil ReviewApplication No.7 of 2019 be ordered to be transferred and be placedbefore Justice G.S. Patel for final disposal. The said application wassupported by an affidavit dated 06.06.2019. The prayer clause asCcontained in paragraph 9 of the application is reproduced below:

“9. It is therefore prayed that:

(a) The above Civil Review Application No.7/2019 be orderedto be transferred and be placed before his Lordship JusticeDG.S.Patel in Mumbai for final disposal.

(b) Early date for hearing in the matter be fixed.”

9. The above application has been rejected vide impugned orderdated 16.07.2019 by Justice Prithviraj K. Chavan. We are conscious ofthe fact that normally the names of the judges may not be required to beEmentioned in the order but considering the issue involved in the matter,the names have been mentioned.

10. We have heard learned senior counsel for the parties andperused the material on record.

11. Shri Huzefa Ahmadi, learned senior counsel for the appellantFsubmitted that review petition should be heard by the same Hon’bleJudge under the provisions of Order 47 Rule 5 of the CPC read withHigh Court amendments made thereunder for the State of Maharashtra.Order 47 Rule 5 was substituted by Maharashtra Government Gazettedated 15.09.1983 to be effective from 01.10.1983. The said provisionGreads as under:

“5. Application for review in Court consisting of two or morejudges.- Where the Judge or Judges, or any one of the Judge,who passed the decree or made the order, review of which isapplied for, continues or continue attached to the Court at thetime when the application for review is presented, and is not or

are not precluded by absence or other cause for period of sixmonths next after the application from considering the decree ororder to which the application refers, such Judge or Judges or anyof them shall hear the application, and no other Judge or Judgesof the Court shall hear the same.

HIGH COURT AMENDMENTS

Bombay - In Order XLVII, for rule 5, substitute the followingrule, namely:

“ 5. Application for review in Court consisting of two ormore Judges.- Where the Judge or Judges, or any one of theJudges who passed the decree or made the order, review ofwhich is applied for, continues or continue to be attached to theCourt at the time when the application for review is presented,and is not or are not precluded by absence or other cause for aperiod of two months next after application from considering thedecree or order to which the application refers, such Judge orJudges or any of them shall hear the application, and no otherJudge or Judges of the Court shall hear the same:

Provided that if in the case of decree or order passed bya Division Bench of two or more Judges of the High Court sittingat any place in the State of Maharashtra, all the said Judges arenot available for sitting together at one place when the reviewapplication is ready for hearing, the application may be heard by aDivision Bench of two or more Judges, at least one of whom, ifavailable, should be the Judge who had passed the decree or ordera review of which is applied for.””

12. Our attention was also drawn to Chapter XXX Rule 3(1) ofthe Rules of the Court applicable for the Bombay High Court[2] whichalso provided that it should be heard by the same Judge, however, subjectto certain situations where such Judge has ceased to be Judge of theHigh Court or have ceased to sit at the particular Bench, in that event, itwould be placed before the Regular Court of the single Judge dealingwith that category of the matters. The said provision i.e. Rule 3(1) ofChapter XXX of the Rules is reproduced below:

“3.(1) An application for review or for amendment of an order ora decree, for speaking to the minutes passed by Single Judge of2 In short “Rules”

Athis Court shall be placed before that Judge: provided, however,where such Judge has ceased to be the Judge of the High Courtor has ceased to sit at the particular Bench, such application shallbe placed before the regular Court of the Single Judge dealingwith the category of matters to which the proceedings relates asfor example: -B

(a)Writ petition, if the original order had been passed in aWrit Petition;

(b)First Appeals, if the original order had been passed inany other Civil matters;

(c)Criminal Appeals, if the original order had been passedin any Criminal matters;

Provided that, where the Single Judge concerned is notavailable for the time being by reason of he being onleave or otherwise as aforesaid such application shall beDplaced before the Court of Single Judge to which thematter may be assigned by the order of the HonourableChief Justice.”

13. Referring to the above rule, Shri Ahmadi submitted that theRules having been framed more than 25 years back and considering theEadvancement of technology and present setup available for virtual hearingthrough video conferencing and the same Judge being available at theprincipal seat of the Bombay High Court, the review should have beenheard by the same Judge. Shri Ahmadi has also placed reliance upon thefollowing judgments of this Court i.e.:F•Malthesh Gudda Pooja vs. State of Karnataka[3]

•Goel Ganga Developers India Pvt. Ltd. versus Union ofIndia through Secretary Ministry of Environment andForests and others[4]

14. On the other hand, Shri Nakul Dewan, learned senior counselGappearing for the respondents submitted that the appellant ought not tohave carried the matter to this court where the proceedings were beingconducted as per the Rules. Shri Dewan has sought to impress upon usby analyzing Rule 3(1) of Chapter XXX of the Rules to state and to

3 (2011)15 SCC 330H4 (2018) 18 SCC 257

SURESH G. RAMNANI v. AURELIA ANA DE PIEDADE MIRANDA @ARIYA ALVARES (DEAD THR. LRS) [VIKRAM NATH, J.]

submit that as Justice Patel was no longer sitting at the Goa Bench,Review Petition had to be heard by the Judge having roster of the saidcategories of the matters to which the proceedings relate i.e. the learnedJudge at the Goa Bench hearing second appeals. Further, reliance hasbeen placed upon by Shri Dewan on the same judgment of MaltheshGudda Pooja (supra). He has also sought to distinguish the judgment inthe case of Goel Ganga Developers India Pvt. Ltd. (supra), reliedupon by the appellant as the said proceedings were relating to NationalGreen Tribunal and the procedure prescribed therein. Further reliance isplace upon the following two judgements:

•Maharashtra Housing & Development Authority vs. P VAnturkar[5].

•Ratanlal Nahata v. Nandita Bose[6].

15. Having considered the submissions, we find that the matterdoes not raise any factual issue, but it is only question of interpretationof the Rules, the Court’s propriety and jurisdiction. We do not wish to gointo the issue of interpreting the Rules in order to hold as to whether thereview should be heard by Judge ‘A’ or any other Judge. However, weare of the view that considering the overall facts and circumstances ofthe case, once an application was preferred by any of the parties that areview may be heard by the Judge who had decided the matter and hadpassed the order from which the review arose, the matter ought to havebeen placed before the Chief Justice on the administrative side ratherthan order being passed on the judicial side. The proviso to Rule 3(1) ofChapter XXX of the Rules confers this power on the Chief Justice toassign particular matter to single Judge for hearing of the reviewapplication where the single Judge concerned was not available for thetime being by reason of being on leave or otherwise as aforesaid i.e.where he had ceased to sit at particular Bench. The Chief Justice,being the master of roster and being conferred with specific powers ofassigning review petitions in given circumstances under the Rules, thelearned single Judge ought not to have dealt with the application dated16.07.2009 (Misc. Civil Application No.526 of 2019), but should havereferred the matter to be placed before the Chief Justice.

16. Accordingly, in the facts and circumstances of the case, weallow the appeal, set aside the impugned order dated 16.07.2019 and

5 (2009) 3 Mh Lj 266

6 (1998) 3 CALLT 348 HC

DEF

Adirect the registry of the High Court to place the said application (Misc.Civil Application No.526 of 2019) on the administrative side before theHon’ble Chief Justice for appropriate orders.

Nidhi Jain

Appeal allowed.