disapproval of the practice which appears to be prevailing in the
Registry of the Aurangabad Bench of this court. The Registry
there does not seem to think it necessary to object to the
impleadment of the Hon'ble Judges comprising a Division Bench
or a Judge sitting singly as party respondents to review petitions
or applications in that nature.
We have not been shown any rule which requires such
impleadment. We, therefore, strongly recommend that hereafter,
the Registrar (Judicial) shall insist upon parties/litigants and
their advocates deleting the names of Hon'ble Judges as party
respondents to review petitions and until such deletion, the
matter should be treated as not ready or under objections.
Despite opportunity being given to the litigants and their
advocates to delete such names and references to the Hon'ble
Judges and personal allegations against them, if the same are not
deleted by carrying out appropriate amendments, the Registry
shall append a note on the proceedings themselves stating clearly
that parties and lawyers were asked to delete such references,
but there being no compliance, the matter comes to be placed
before an appropriate court for directions. That would enable the
appropriate court to dismiss such proceedings only on this
ground. Just as there is enough justification for discontinuance of
such practice because none can insist on such impleadment, its
discontinuance upholds a salutary principle. The sanctity and
purity of court proceedings lies in protection to Judges and
presiding officers against personal attacks by litigants and
lawyers on them. It is too well settled to require any reference to
a judgment or a precedent that there is freedom to be critical of a
judgment, but the language of such criticism must be sobre and
respectful. The discourse of law is the discourse of civility. Even
in the memo of review petitions or appeals, criticism of the
judgment should not reflect any personal attack of the litigant or
the draftsman on the Judge or presiding officer. None can claim a
freedom to mount an attack, and that too contemptuous, on a
Judge while criticising or assailing his judgment. If this much
protection to the Judge is not ensured or there is no safeguard
against malicious personal allegations, no court or no Judge can
function fearlessly and independently. Sometimes, a court is
required to be severely critical of the conduct of parties before it.
It does not demean or show any disrespect to them much less
personally, but ensures that the hand of the law is strong enough,
and its arm long enough to punish every guilty person howsoever
high he may be and to reach injustice wherever it is found.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10972 OF 2015
WITH
CIVIL APPLICATION NO. 3164 OF 2015
WITH
CIVIL APPLICATION NO. 3165 OF 2015
WITH
CIVIL APPLICATION NO. 428 OF 2016
Common Citizen of India }
(Common Man) }
through Rakesh Omprakash }
Agarwal,
versus
The Hon'ble High Court }
Judicature of Bombay through }
Registrar General, High Court, }
Mumbai, Fort area, Mumbai, }
Mumbai Tal. Dist. Mumbai. }
2. The Hon'ble Chief Justice, }
High Court, through Registrar }
General, High Court,
3. The Hon'ble Judge }
Shri. Abhay Shriniwasji Oka }
High Court, through Registrar }
General, High Court,
4. The Hon'ble Judge }
Shri. Anil Kumar Menon }
High Court, through Registrar }
General,
5. State Government of }
Maharashtra, through Chief }
Secretary,
6. The Government of India }
through Chief Secretary, }
CORAM :- S. C. DHARMADHIKARI &
G. S. PATEL, JJ.
Pronounced on 6th May, 2016
Citation: 2016(4) MHLJ 28
JUDGMENT:- (Per S. C. Dharmadhikari, J.)
1. On this writ petition, along with two civil applications, a
Division Bench of this court (Bench at Aurangabad) on 23rd
October, 2015 passed the following order:-
“Party in person present
1) In the present petition the petitioner/party in
person has impleaded the High Court as Respondent
No.1; Hon'ble the Chief Justice as Respondent No. 2;
Hon'ble Shri Justice A. S. Oak, as Respondent No. 3 and
Hon'ble Shri Justice Anil Kumar Menon as Respondent
No. 4. Secondly, vide one of the prayers, the petitioner is
seeking addition of some provision in the Circular/Order
dated 6th January, 2010 issued by the High Court.
2) In view of the above, in terms of Circular/Order
dated 6th January, 2010, this matter will have to be
heard by the principal seat at Mumbai. Hence, the
present writ petition along with the Civil Applications
filed therein, be placed before the principal seat.”
2. It is in the above circumstances that the writ petition,
along with two civil applications was placed before Hon’ble the
Acting Chief Justice on the administrative side and Her Ladyship
was pleased to pass an administrative direction assigning these
matters to a bench presided over by S. C. Dharmadhikari, J.
3. Accordingly, with advance intimations and as per
convenience of the party appearing in person, we heard these
matters and reserved judgment on 17th February, 2016. The
petitioner party in person has, by this petition, submitted that a
writ petition was filed at Aurangabad Bench of this court being
Writ Petition No. 3696 of 2012. That writ petition essentially
projected the grievance stated to be of common helpless citizens
in not being able to present and file petitions and applications in
Marathi language in this court. A grievance was raised in that
petition about alleged discrimination and differential treatment to
litigants who wish to present and institute proceedings in Marathi
and press and argue them in that language. It appears that the
grievance was that this being the language of the State, the
petitioner party in person must be allowed to file and institute
petitions and equally to argue them in Marathi.
4. On that petition, a detailed judgment and order was passed,
copy of which is annexed as Annexure ‘Q’ at pages 134-142 of this
petition.
5. The petitioner was not satisfied with this judgment and
order and sought review of the same. He filed Civil Application
No. 7378 of 2012. Both, the original petition and the review
petition/application were placed before a Division Bench at
Aurangabad Bench of this court. On the review
petition/application, on 27th November, 2012, the Division Bench
at Aurangabad passed a detailed order, but that detailed order
took care of some other grievance of the petitioner before us. That
was with regard to recusal of Hon’ble Mr. Justice Sunil P.
Deshmukh as a member of the Bench hearing the review
application. Since it was directed to be placed before a Bench of
which Hon’ble Mr. Justice Sunil P. Deshmukh is not a member,
thereafter, the said review petition/application was placed before
a Bench at Aurangabad on 30th September, 2013. That Bench
passed an order, copy of which is at page 102 of the paper book.
6. The petition does not indicate the fate of review application.
Thereafter, that review application, which was originally
numbered as Review Application (St) No. 15820 of 2012 and
then numbered as Review Application No. 191 of 2013, along
with other civil applications and one Writ Petition No. 3696 of
2012, was placed before a Bench presided over by Hon’ble Mr.
Justice A. H. Joshi and Hon’ble Mr. Justice R. V. Ghuge at
Aurangabad. That Bench passed an order on 19th November,
2013 holding that the petitioners accept the position that this
court in para 11 of order dated 27th April, 2012 had taken care of
prayer clauses (d), (e) and (f) of the writ petition. Yet, the
petitioner was heard by the Bench and the Bench observed that
the court had, on the earlier occasion, advised the petitioner to
make an appropriate representation to the appropriate authority.
It is not capable of being reviewed. Once again, the petitioner was
granted liberty by this order of the Division Bench dated 19th
November, 2013 to approach the appropriate forum i.e. the State
Government. If after due persuasion, the Government does not
pay attention to the petitioner’s representation, he would be free
to take recourse to other forum under writ jurisdiction and that is
how the review petition/application and all the civil applications
came to be disposed of. Thereafter, what appears from the record
is that the petitioner accepted the orders of the Division Bench
and approached the State Government by a representation, copy
of which is at Annexure ‘B’ at page 76 of the paper book. That was
followed by another representation dated 21st April, 2015. It was
then followed up by reminders after reminders and copies of
which are to be found up till page 88 of the paper book. Then, the
record indicates that the petitioner had already filed Writ Petition
No. 7943 of 2013. That was placed before a Division Bench of this
court at Aurangabad Bench on 30th September, 2013. The
petitioner was not satisfied with this order dated 30th September,
2013 (page 102 of the paper book) and filed a review application
being Review Application No. 157 of 2013 in that writ petition.
That was also placed at Aurangabad and the record indicates that
the court was trying to assist the petitioner by appointing an
advocate so as to better appreciate his point of view.
7. The record further indicates that these proceedings were
placed on 20th February, 2014 at Aurangabad before the Division
Bench presided over by one of us (S. C. Dharmadhikari, J.). The
Bench found that the petitioner/applicant questions some
decisions of the High Court and has impleaded the Registrar
(Judicial) and equally Hon’ble The Chief Justice as party
respondents. Hence, in terms of the circular, the matter will have
to be heard at the Principal Seat at Mumbai. That is how the
matter was placed before the Principal Seat. The record indicates
that the petitioner was not satisfied with the transfer of the
proceedings from the Bench at Aurangabad to the Principal Seat
and the circular dated 6th January, 2010 of the High Court. The
petitioner then got involved in those proceedings and which
together with the transferred matters from Aurangabad Bench
came up before a Division Bench of this court, which segregated
the matters, namely, Review Petition No. 60 of 2014 in Writ
Petition No. 4259 of 2014 and two writ petitions being Writ
Petition No. 5097 of 2012 and Writ Petition No. 5098 of 2012.
The record further indicates that these matters were placed on
22nd August, 2014, 9th March, 2015 and 1st April, 2015. Finally,
the review petition and the writ petitions came to be dismissed for
want of prosecution.
8. With such chequered history of the proceedings, what the
petitioners are now seeking to do is to recall several orders
passed by this court. They are not only seeking to recall the order
dated 20th February, 2014 passed at Aurangabad Bench and
relying on the circular of this court dated 6th January, 2010, but
are seeking to recall the Division Bench judgment of this court
upholding that circular.
9. Upon hearing the party in person at great length and
perusing, with his assistance, this petition and all the annexures
thereto, we do not see how we can entertain this petition. What
the petitioner has now done is to file a writ petition and which
was placed before a Bench at Aurangabad together with two civil
applications, namely, Writ Petition No. 8505 of 2015 now
numbered as Writ Petition No. 10972 of 2015 and Civil
Application Nos. 9839 of 2015 and 11819 of 2015, which are now
numbered as Civil Application No. 3164 of 2015 and Civil
Application No. 3165 of 2015.
10. These petitions were initially placed before a Division Bench
on 23rd October, 2015 at Aurangabad and the petitioner was
present. The Bench heard the petitioner, perused the petition and
passed a order, which we have reproduced above.
11. Thus, the petitioner has filed a substantive petition and is
raising the same issues which he had raised during the course of
his arguments in the various writ petitions, including during the
course of arguments in writ petition challenging the circular of
this court issued on the administrative side dated 6th January,
2010. The legality and validity of that circular has been upheld.
12. Mr. Dhond learned Senior Counsel appearing for
respondent nos. 1 and 2 in this case has placed before us a copy of
the Division Bench judgment dated 11th December, 2014
upholding the circular. It is well settled that final orders in a PIL
or a writ petition filed in public interest litigation binds all. The
orders passed in a PIL would be operative in rem. (See AIR 2012
SC 3230). We found, from a perusal of that judgment, that all the
issues raised have been considered. In fact, the Division Bench
judgment, in upholding the power of the Hon’ble the Chief Justice,
has declared the proviso to Rule 2 of Chapter XXXI of the
Appellate Side Rules as illegal and invalid and being in
contravention of section 126 of the Civil Procedure Code, 1908.
All the writ petitions and review petitions have thus been
disposed of in terms of the operative order in para 55.
13. We do not see how now a substantive writ petition raising
similar issues can be entertained. The petitioner has impleaded
not only the Hon’ble the Chief Justice, High Court Bombay as
respondent, but also impleaded two sitting Judges, namely,
Hon’ble Mr. Justice A. S. Oka and Hon'ble Mr. Justice A. K. Menon
as party respondents. These Hon'ble Judges have passed orders
referred in para 7 above. Thus, all the proceedings arising out of
the initial order dated 27th April, 2012 are disposed of. The
petitioners are aware that language of the High Court is not
determined by the High Court, but in terms of Article 348 of the
constitution by the Parliament.
14. We have given a very patient hearing to the petitioner,
because he appeared in person. Secondly, we have also perused
the writ petition, which is filed in Marathi, without insisting on a
translation. We have done so since Marathi is the mother tongue
of one of us (S. C. Dharmadhikari, J) and the other (G. S. Patel, J)
is sufficiently conversant and able to read and speak it, though it
is not his mother tongue. On an earlier occasion when the Bench
included the Hon’ble Mr.Justice B. P. Colabawalla, we directed the
High Court Registry itself to translate this petition into English.
At no stage did we give any impression to the petitioner that he
cannot rely upon the original pleadings in Marathi and put across
his views and submissions in Marathi. We took great pains and
care to ensure that the petitioner gets a fair and just opportunity
to place his views. Therefore, we allowed him to tender a
compilation of judgments as well.
15. We find that this writ petition is nothing but an attempt of
the petitioner to seek rehearing of all the pleas and proceedings in
which they have been raised though all of them are disposed of by
detailed orders earlier. Though the orders were sought to be
reviewed by the petitioner, even those review petitions have been
also disposed of. In the garb of a fresh petition, we cannot reopen
concluded matters. There is a limit to which this court can
reconsider and rehear disposed of cases on the grounds as are
now raised above. We do not think that in the garb of some
paragraphs of the writ petitions but raising concluded issues we
can entertain this petition.
16. The attempt of the petitioners to implead the Judges of this
court deserves to be strongly deprecated. A litigant cannot, even
if he is appearing in person and just because he is unsuccessful in
the initial round, while seeking a review of the orders passed by
this court, implead the Hon'ble Judges and the Bench sitting
collectively or individually as party respondents. The review
petition, as is ordinarily well settled, has to be heard by the same
Judge for the review goes to the Judge and appeal goes to the
court. If the review has to be heard by the very same Judge, then
we do not see how the petitioner can complain that the said
review petition should not be heard by one of the Judges
comprising the Bench or if that is heard by a distinct Bench and
dismissed, he can go on impleading and arraying all the Judges as
party respondents and seeking reliefs against them personally.
We do not think that the petitioner’s prayers in that behalf can be
granted.
17. A party in person does not enjoy special privilege or a
different treatment. He cannot dictate to the court what orders
and reliefs should be granted in his case. All parties and litigants
must bear in mind that justice is rendered in accordance with law
and not as per their notions, ideas and view of law. The courts
interpret law and apply it to facts and circumstances of a given
case. If a law enacted by a competent legislature is not
unconstitutional, null, void and of no legal effect, then, that has to
be applied, come what may litigants feel about it. Courts do not
make law but they interpret and apply a existing law. A
reiteration of these elementary principles is necessary because of
present day tendencies of litigants and parties, their approach
towards legal proceedings. They do not have a absolute,
uncontrolled, unregulated right of approaching a court of law
again and again and on the same cause of action, with same
prayers after the main proceedings are disposed of by a judgment
and order. There are exceptions to the principle of finality of
judgments and orders, but these are also set out in law. If the law
permits intervention in final judgments on limited grounds, then,
the courts cannot ignore that law and reconsider its judgment
and order by a fresh hearing on the same concluded issues as if it
is repository of all powers, namely, original, appellate, revisional
etc. The remedy of those aggrieved by a final judgment and order
is to prefer an appeal which lies to a appellate court. The same
court cannot hear that appeal. A discipline, regime and definite
legal principle controls an adjudication before a court of law.
Public policy and public interest demand a quietus or end or
finality to adjudication of cases before a court of law. It is well
settled that statutes of limitation and provisions like res-judicata
or constructive res-judicial work towards and ensuring public
peace. Legal proceedings ought not be a tool of harassment,
oppression, exploitation by vexing one's opponent, in a
adversarial judicial system, repeatedly. One can duly imagine his
agony for one who asserts a plea against the other on failure to
prove it must suffer all legal consequences. By this process alone
all the rights and equities can be balanced. There is a certainly a
gain and advantage to the public for they know what is the
ultimate status of a legal cause and their position on account of its
final conclusion. A just and peaceful society is built on this
foundation which none should weaken.
18. The judgments relied upon by the petitioner set out salutary
principles and namely of guarantee of justice to all by application
of principles of natural justice and fair and just hearing. All these
judgments do not have any relevance to the issue at hand. The
petitioner having failed to satisfy us as to how he can file repeated
petitions on the same cause of action, which is dealt with and is a
subject matter of several final judgments and orders of this court,
a fresh writ petition, which even if termed as curative one but
only seeking to recall and review the judgments as above is thus
not maintainable. We proceed to dismiss the same. None of the
arguments persuade us to hold that the petitioners have been
denied justice or denied access to justice.
19. We had indicated to the petitioner already that Civil
Application No. 3164 of 2015 would not survive. It would not
survive for the simple reason that there is no question of granting
any relief under Order I Rule 8 of the Civil Procedure Code, 1908.
Once there is no lis or cause which is entertained by this court,
the question of granting any leave under this provision will not
arise.
20. As far as Civil Application No. 3165 of 2015, that seeks to
raise the same contentions as have been already dealt with by
this court. The petitioner is aggrieved by the manner in which
this court has disposed of his earlier writ petitions. We do not
think that this civil application as well can be entertained.
21. As far as the another civil application, which the petitioner
has filed, namely Civil Application No. 428 of 2016, we are of the
opinion that the notification issued by this court bearing number
P. 1602/2015 dated 23rd September, 2015, which is sought to be
challenged, deals with a completely distinct issue. That, according
to the petitioner/applicant, puts undue and unreasonable
restrictions on the right of parties in person to file matters and
argue them before this court.
22. The petitioner in person was allowed to argue this case. We
heard him patiently and in the language in which he claims to be
familiar and conversant. Therefore, no restrictions, much less
undue and unreasonable ones, were placed on him. Yet, if he
desires to raise the issue of the legality and validity of the above
circular, then, that can be raised in appropriate proceedings and
before appropriate forum. We do not think that the prayers in this
Civil Application No. 428 of 2016 as well can be entertained.
Those are being raised in disposed of proceedings. Hence,
granting the above liberty, this civil application is also disposed
of.
23. Before parting, we must once again reiterate our strong
disapproval of the practice which appears to be prevailing in the
Registry of the Aurangabad Bench of this court. The Registry
there does not seem to think it necessary to object to the
impleadment of the Hon'ble Judges comprising a Division Bench
or a Judge sitting singly as party respondents to review petitions
or applications in that nature.
24. We have not been shown any rule which requires such
impleadment. We, therefore, strongly recommend that hereafter,
the Registrar (Judicial) shall insist upon parties/litigants and
their advocates deleting the names of Hon'ble Judges as party
respondents to review petitions and until such deletion, the
matter should be treated as not ready or under objections.
Despite opportunity being given to the litigants and their
advocates to delete such names and references to the Hon'ble
Judges and personal allegations against them, if the same are not
deleted by carrying out appropriate amendments, the Registry
shall append a note on the proceedings themselves stating clearly
that parties and lawyers were asked to delete such references,
but there being no compliance, the matter comes to be placed
before an appropriate court for directions. That would enable the
appropriate court to dismiss such proceedings only on this
ground. Just as there is enough justification for discontinuance of
such practice because none can insist on such impleadment, its
discontinuance upholds a salutary principle. The sanctity and
purity of court proceedings lies in protection to Judges and
presiding officers against personal attacks by litigants and
lawyers on them. It is too well settled to require any reference to
a judgment or a precedent that there is freedom to be critical of a
judgment, but the language of such criticism must be sobre and
respectful. The discourse of law is the discourse of civility. Even
in the memo of review petitions or appeals, criticism of the
judgment should not reflect any personal attack of the litigant or
the draftsman on the Judge or presiding officer. None can claim a
freedom to mount an attack, and that too contemptuous, on a
Judge while criticising or assailing his judgment. If this much
protection to the Judge is not ensured or there is no safeguard
against malicious personal allegations, no court or no Judge can
function fearlessly and independently. Sometimes, a court is
required to be severely critical of the conduct of parties before it.
It does not demean or show any disrespect to them much less
personally, but ensures that the hand of the law is strong enough,
and its arm long enough to punish every guilty person howsoever
high he may be and to reach injustice wherever it is found.
25. The practice of impleading Judges to review petition also
overlooks another settled principle and as highlighted above that
a review lies against an order of Judge and review applications
must be placed before him necessarily. Whether he is impleaded
or not, the matter is bound to be placed before him if he/she is
available. In a decision in the case of State of Orissa and Ors. vs.
Commissioner of Land Records and Settlement, Cuttack and Ors.
(1998) 7 SCC 162
in the context of review jurisdiction, this is what the Hon'ble
Supreme Court of India held:-
“28. It may be argued that if the order of the delegate is
tantamount to the order of the principal, then the
principal can review such an order of the delegate. This
appears to be plausible at first blush but is, in our
opinion, not correct because of the intervention of
another fundamental principle relating to “review” of
orders. The important principle that has to be kept in
mind here is that a review application is to be made
only to the same Judge or if he is not physically
available, to his successor.
29. The decision of the Privy Council in
Maharajah Moheshur Singh v. Bengal Govt. (1857-60)
7 MIA 283 : 3 WR 45 (PC) to which reference was made
by learned Senior Counsel, Shri T. L. Vishwanath Iyer,
is very apt in this connection. Adverting to the basic
concept of review, it was observed by the Privy Council:
(p. 47)
“It must be borne in mind that a review is
perfectly distinct from an appeal; that is quite
clear from all these Regulations that the primary
intention of granting a review was a
reconsideration of the same subject by the same
Judge, as contradistinguished to an appeal which
is a hearing before another Tribunal.”
Their Lordships added:
“We do not say that there might not be cases in
which a review might take place before another
and a different Judge; because death or some
other unexpected and unavoidable cause might
prevent the Judge who made the decision from
reviewing it; but we do say that such exceptions
are allowable only ex necessitate. We do say that
in all practicable cases the same Judge ought to
review;.... ”
It is, therefore, clear that the same Judge who disposes
of a matter, if available, must “review” the earlier order
passed by him inasmuch as he is best suited to remove
any mistake or error apparent on the face of his own
order. Again, he alone will be able to remember what
was earlier argued before him or what was not argued.
In our opinion, the above principle is equally applicable
in respect of orders of review passed by quasi-judicial
authorities.”
26. We say nothing more and expect this much to be enough
reminder to all concerned.
(G.S.PATEL, J.) (S.C.DHARMADHIKARI, J.)
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