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HVN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
REVIEW APPLICATION NO. 12 OF 2006
IN
SECOND APPEAL NO. 1324 OF 2005
Maharashtra Housing and Area
Development Authority, established
under the MHADA Act, through its
Chief Officer, Pune Housing and Area
Development Board, Agarkar Nagar,
Pune. ... Petitioners
Versus
P.V. Anturkar,
Aged 62 years, Occ.Service,
residing at Amu Bhuvaneshwar
Street, Pashan Road, Pune. ... Respondent
Mr. G.W. Mattos, A.G.P. for Petitioner.
Mr. A.V. Anturkar with Mr. Sugandh Deshmukh for
Respondent.
CORAM: F.I. REBELLO &
K.U.CHANDIWAL,JJ.
DATED: JULY 04, 2008
ORAL JUDGMENT (Per F.I. Rebello,J.):
. The learned Chief Justice has been pleased to
place before us, the following reference for our
consideration, pursuant to the order of a learned
Judge of this court dated 19.3.2008. The questions
referred are as under :
“(1) Whether a Review Petition under Section
114 read with Order XVII of the Code of
Civil Procedure 1908 is maintainable only
before he Judge who has passed the order?
(2) Whether the Review Petition can be heard
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-2-by any other Judge in accordance with Rule 3
of Chapter XXX of the High Court Appellate
Side Rules?”
2. A learned Judge of this court by his order
dated 6.6.2007 placing reliance on the judgment in
the case of Devaraju Pillai Vs. Sellayya Pillai
(1987) 1 SCC 61 was pleased to observe that the
remedy for the review petitioner is either to
challenge the order under review before the Supreme
Court or move a motion before the Hon’ble Chief
Justice of this Court for direction to place the
review
petition before Hon’ble Judge who had heard
the matter and at the relevant time had his Head
Quarter at Aurangabad . Hence directed that the
matter be removed from his Board.
. The matter thereafter was placed before the
another learned Judge who by his order dated
19.3.2008 noted Chapter XXX Rule 3 of the High Court
Appellate Side Rules and held that Review Petition
need not be placed before the same learned Judge, if
the concerned Judge is not available at the
particular Bench. The learned Judge also noted that
as the concerned learned Judge has since demitted
office, the same will have to be heard by a Judge
taking up the concerned appeals. However, in view
of the earlier order passed by another Coordinate
Bench, the learned Judge thought it appropriate that
the matter be placed before the learned Chief
Justice for consideration of the issues which we
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have referred to earlier.
4. This matter was ordinarily fixed for hearing
on 9th July, 2008. However, considering the Bench
would not be available, with the consent of the
parties, the matter was placed for hearing today and
has been heard.
5. We have considered the judgment of the
learned Supreme Court in Devaraju Pillai (supra).
In our opinion, the said judgment does not lay down
as a proposition of law, that review would not lie
before
another learned Single Judge, if the learned
Single Judge who had heard the Second appeal is not
available either for the reason of ceasing to hold
office or being not available at the Bench. Let us
consider the ratio of that Judgement. In that case,
the learned Judge sitting in second appeal,
considering the documents construed the same as a
Deed of Settlement. An application for review was
filed against the said judgment. Another learned
Judge heard the matter, as the Judge who had heard
the Second Appeal was not available. The learned
Judge who decided the Review reconsidered the
document and held that it was a Will and not Deed of
Settlement. It is in that context that the learned
Supreme Court has observed as under:
“If the party was aggrieved by the judgment
of the learned Single Judge sitting in
second appeal, the appropriate remedy for
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-4-the party was to file an appeal against the
judgment of the learned Single Judge. A
remedy by way of an application for review
was entirely misconceived and we are sorry
to say that the learned Single Judge who
entertained the application totally exceeded
his jurisdiction in allowing the review and
upsetting the judgment of the learned Single
Judge, merely because he took a different
view on a construction of the document…”
. A perusal, therefore of observations would
clearly
indicate that the learned Supreme Court was
pleased to hold that whilst sitting in review, it is
not open to another learned Single Judge, because he
had different view on the construction of the
judgment to review the same. The test for review
are as laid down in Order 47 of the Code of Civil
Procedure. The judgment therefore, is not authority
for the proposition that if the Judge who passed the
order is not available, the review cannot be heard
by another single Judge in terms of the Rules framed
by the Court, but is an authority for the
proposition that it is not open to the another
learned Single Judge to reappreciate or reconstrue
the findings on the same facts which had been
considered by the learned Judge who had disposed of
the Appeal. In our opinion, on this single aspect
itself, the reference ordinarily ought to have been
answered and the matter be directed to be heard by
another learned Single Judge.
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6. However, considering that there are two
issues referred to us in order to avoid further
litigation, we propose to answer the two questions
referred for our consideration.
. Chapter XXX, Rule 3 of the Appellate Side Rules
reads as under :
“3. (1) An application for review or for
amendment of an order or a decree, for
speaking to the minutes passed by a Single
Judge
of this Court shall be placed before
that Judge, provided, however, where such
Judge has ceased to be the Judge of the High
Court or has ceased to sit at the particular
Bench, such application shall be placed
before the regular Court of the Single
Judge, dealing with the category of matters
to which the proceedings relates – as for
example :-
(a) Writ petition, if the original order had
been passed in a Writ Petition; (b) First
Appeals, if the original order had been
passed in any other Civil matters; (c)
Criminal Appeals, if the original order had
been passed in any criminal matters;
Provided that, where the Single Judge
concerned is not available for the time
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being by reason of he being on leave or
otherwise as aforesaid such application
shall be placed before the Court of Single
Judge to which the matter may be assigned by
the order of the Honourable Chief Justice.
(2) Where the order has been passed or the
judgment has been delivered by a Division
Bench, such application shall be placed
before that Division Bench;
. Provided however, that where one Judge of
the said Division Bench has ceased to be the
Judge of the High Court, or has ceased to
sit at the particular Bench, such
application shall be placed before another
Division Bench of which the other Judge is a
Member;
. Provided further that when both the
Judges have ceased to be the Judges of the
High Court, or have ceased to sit at the
particular Bench, such application shall be
placed before a Division Bench dealing with
– (a) Writ Petition,s if the original order
had been passed in a Writ Petition; (b)
First Appeals, if the original order had
been passed in a First Appeal;
(c) Criminal Appeals, if the original order
had been passed in Criminal Appeal or a
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Criminal Application.”
. It is thus clear that on the Judge ceasing to be
the Judge of this court, or ceases to sit at the
particular Bench, the application can be placed
before the Regular Court of the Single Judge. These
are rules which lay down the procedure for hearing a
review petition. These rules are not in challenge
before us. Once the rules are not in challenge, the
procedure prescribed by these rules ought to be
followed. Thus there is jurisdiction in another
Judge under the situation contemplated under Rule 3
of Chapter XXX to hear the review application.
7. The learned counsel for the appellant
however, drew to our attention the language of order
47, Rule 3 of the Code of Civil Procedure. This
rule has been substituted in Maharashtra by the
following rule.
“5. Application for review in Court
consisting of two or more Judges – Where the
Judge or Judges, or any one of the Judges,
who passed the decree or made the order, a
review of which is applied for, continues or
continue attached to the Court at the time
when the application for a review is
presented, and is not or are not precluded
by absence or other cause for a period of
two months next after the application from
considering the decree or order to which the
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-8-application refers, such Judge or Judges or
any of them shall hear the application, and
no other Judge or Judges of the Court shall
hear the same.
. Provided that if in the case of decree or
order passed by Division Bench of two or
more Judges of the High Court sitting at any
place in the State of Maharashtra, all the
said Judges are not available, for sitting
together at one place when the review
application is ready for hearing the
application may be heard by a Division Bench
of two or more Judges, at least one of whom,
if available, should be the Judge who had
passed the decree or order, a review of
which applied for.”
. Referring to this rule, the learned Counsel sought
to contend that it is the same Judge who ought to
have heard the matter. In our opinion, this would
not be proper construction of the rule. The rule
firstly contemplates that the Judge must continue to
be attached to the court. In other words, he must
not cease to be a Judge. Further he ought to be not
precluded by absence or other cause for a period of
two months next after the application, from
considering the decree or order to which the
application refers. Only in such a case will the
same Judge hear the matter. Otherwise considering
the rules framed by this court, any other Judge
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assigned the work in terms of the allotment done by
the learned Chief Justice, can hear the matter. In
Keith Allams and Others Vs. Irwon D’silva and
Others 2000 (1) Bombay Cases Reporter, 788, this
court was considering in Appeal the procedure
pertaining to recording of evidence. The question
for consideration was whether when the Judge ceases
to try that matter, the evidence should be recorded
de novo or successor Judge can continue from the
stage where the evidence was last recorded. After
considering various provision, the court noted that
what must be taken into account is that the court
has to
deal with a matter of procedure. Secondly
keeping in view the huge pendency and delay in
disposal of cases, if otherwise, permissible in law,
the approach to be adopted in the matter of
procedure should be such which may advance the cause
of justice and help in expeditious disposal rather
than the one which may result in further delays.
8. In the instant case, Order 47 Rule 5 will
have to be read with the rules framed by this court.
In Iridum India Telecom Ltd. Vs. Motorola
Incorporation,2005 (2) S.C.C. 145 the Supreme court
dealing with the procedure under Rule 1 of Order 8
held that he procedure for filing the written
statement would not be applicable to the suits on
the Original Side of a Chartered High Court. This
view has been reiterated in the Judgment of the
Supreme Court in Vidyawati Gupta and Others Vs.
Bhakti Hari Nayak and Others, (2006) 2 Supreme Court
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Cases 777. The learned counsel seeks to submit that
this is based on the rules made on the Original Side
and therefore, would not be applicable to the
appellate side. We may only refer in that context
to the observation of Chief Justice Chagla in Shirin
Vishnu Kirpalani Vs. Vishnu Hiaranand Kirpalani,
13, A.I.R. 1960 Bombay 447. The learned Judge was
speaking for the Bench dealing with the
applicability of Order 41, Rule 35 of the Code. The
court noticed that the High Court exercising its
Appellate Side Jurisdiction is not bound by the
mandatory provisions of Order 41, Rule 35, and
although the
High Court has framed rules on the
Original Side there was no such rules framed on the
appellate Side. The Court observed that, in the
absence of any such rules, it seems that the power
of the High Court in its Appellate Side Jurisdiction
is not fettered by the provisions. The learned
Chief Justice observed that there is no reason why,
if a Judge on the Original Side is armed with that
power, the Judge sitting in appeal in the High Court
should not have similar power, though it is a
different matter that power is to be exercised
sparingly and with caution.
. The appellate side rules are in conformity
with the provisions of Order 47 Rule 5 of the Code.
These rules are not under challenge before us and
even if order 47 Rule 5 as amended by this court,
has to be held inapplicable on the Appellate side,
the judgment in Kripalani would be an answer. As
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noted earlier, also Chapter XXX Rule 13 is not under
challenge before us. Therefore, as long as the rule
subsists, it is these rules which govern the
procedure for hearing of review petitions when the
Judge who had passed the order has demitted office
or is not available at the Bench where the order has
been passed. Procedure is a hand maid of justice.
Provisions pertaining to procedure have to be read
to further the cause of justice. Any
interpretation, which will defeat this object, will
have to be rejected unless the express language of
the provision leaves no room for any other
interpretation.
9. The learned counsel then sought to contend
that in Devaraju Pillai (supra) the observations are
obiter dicta and that obiter dicta of the Supreme
Court is binding on the High Courts in the absence
of a direct pronouncement on that question elsewhere
by that court.(See Oriental Insurance Co. ltd. Vs.
Meeta Variyal and Others (2007) 5 Supreme Court
Cases 428. In our opinion, mere casual
observations, assuming that there are such
observations in Devraju Pillai (supra) can not be
said to be an obiter dicta. What is binding on the
High Court and Courts subordinate, is the ratio
decendi of the judgment. It is only in a case where
though not required to be answered, the Supreme
Court has pronounced the law or declared the law,
will only such obiter be binding on the High Court
provided that Supreme Court otherwise has not
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pronounced on that issue. The view that we have
taken is fortified by the Full Bench Judgement of
this Court in Kamlesh Kumar Ishwardas Patel Vs.
Union of India and Others, 1995(2) Bom.C.R. 640.
Considering as to what would be obiter dicta and
what is binding, the Full Bench set out that what is
binding under the provisions of Article 141 of the
Constitution of India,is the law declared by the
Supreme Court.
. If there is a clear enunciation or declaration of
law, the same would be biding even though such
declaration
was not strictly necessary for disposal
of the case or the declaration of law is not
followed by actual application thereof in the case
in question. The law declared as well as applied in
a particular decision becomes ratio decidendi of the
case while a mere declaration of law, even though
solemn and thoroughly reasoned, without application
thereof is branded as obiter dicta. In our opinion,
having explained the ratio decendi in Devaraju
Pillai (supra) and even considering the argument
that the obiter dicta is binding, clearly there is
no declaration or enunciation of law by the Supreme
Court as to review based on the rules made by this
Court.
10. Considering the above, the Reference is
answered as under :
. Question No. 1 in the negative. ::: Downloaded on - 09/06/2013 13:33:42 ::: -13- . Question No. 2 in the affirmative. . Reference disposed of accordingly. . The Registry to place the matter before the
Judge assigned to take up Review Petitions.
(K.U.CHANDIWAL, J.) (F.I.REBELLO, J.)
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