Full Judgment Text
2010:BHC-AS:12453-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 577 OF 2010
RUKHANA ASSOCIATES )
A partnership firm having its principal )
place of business at Pheroze Sadan, )
rd
3 Floor, Plot No. 10, Sion – Matunga )
Road, Mumbai – 400 022. ) ... ... Appellant.
Versus
E-SQUARE LEISURE PVT. LTD. )
(Erstwhile Ganatra Hotels Pvt. Ltd.) )
A private limited company having its )
th
registered office at Lens View Bldg., 6 )
Floor, Viradesai Road, Opp. Country )
Club, Andheri West, Mumbai – 400 053. ) ... ... Respondent.
Mr. A. Y. Sakhare, Sr. Advocate with Mr. V. P. Sawant &
Ms. Usha Rahi i/by M/s. Mayur Narendra & Co. for the Appellant.
Mr. Vivek Kantawala with Ms. Sneha Nanandkar i/by M/s. Vivek
Kantawala & Co., for the Respondent.
CORAM : A. M. KHANWILKAR and
A. A. SAYED, JJ.
DATED : 2ND JULY, 2010.
ORAL JUDGMENT (Per A. M. Khanwilkar, J.):
Heard learned Counsel for the parties.
2. Admit.
3. By consent, the appeal is taken up for final disposal forthwith.
th
4. The appeal arises out of the judgment and decree dated 20 February, 2010
passed by the Civil Judge, Senior Division, Pune, in Special Civil Suit No. 667 of
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2
2004. The appellant/plaintiff filed the said suit for specific performance of
actionable claim and declaration. The said suit has been dismissed by the trial
Court by passing the following order :
“1. The suit is dismissed.
2. The Plaintiff to pay the deficit Court fees of Rs.1,00,225/ within a
period of one month from the date of decree and in default of payment of
Court fees by the plaintiff, precept be issued to the Collector to recover the
deficit court fees from the plaintiff as arrears of land revenue.
3. Decree be drawn accordingly.”
For the nature of the order that we propose to pass and considering the principal
grievance made on behalf of the appellant, it is not necessary to advert to all the
factual matrix of the case. The relevant facts on the basis of which the appeal can
be disposed of are that the suit proceeded for trial before the Judge Mr. Chilbule.
th
He recorded the evidence of the witnesses. On 25 January, 2010, the oral
arguments were advanced by the parties before the abovenamed Judge, who had
recorded the evidence. The said Judge directed the parties to file gist of oral
th
arguments and adjourned the case to 30 January, 2010. In compliance of the said
direction, the parties filed their gist of oral arguments. However, before the
judgment was pronounced, the said Judge was transferred and in his place the
present Judge Mr. A. P. Raghuvanshi, Civil Judge, Senior Division, was appointed.
Naturally, therefore, the suit was to now proceed before the newly appointed
Judge. Accordingly, when the suit appeared on the board of the new Judge, Mr. A.
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3
th
P. Raghuvanshi, on 11 February, 2010, the Plaintiff through Counsel requested
the new Judge to place the matter for oral arguments on a convenient date.
However, the Judge was of the opinion that since the gist of oral arguments was
already on record, it was unnecessary to place the matter for oral arguments
afresh. Admittedly, without placing the matter for oral arguments, the impugned
th
judgment came to be pronounced on 20 February, 2010. It is in this background,
the appellant has approached this Court by way of this appeal.
5. The grievance of the appellant is that the requirement of oral arguments
could not have been dispensed with by the newly appointed Judge. That was
mandatory. The respondent on the other hand contends that since the gist of oral
arguments were already placed on record by both the parties, in view of the
expansive provision contained in Order XVIII Rule 2(3A) it was not necessary for
the concerned Judge to once again hear the oral arguments before pronouncing
the judgment. This is the limited controversy that we are called upon to address at
the outset in the present appeal.
6. As aforesaid, it is common ground that oral argument was concluded on
th
25 January, 2010 before Judge Chilbule, (the predecessor of Mr. A. P.
Raghuvanshi, Civil Judge, Senior Division). Before pronouncement of the
judgment, Judge Chilbule was transferred. But after the new Judge was appointed
in his place (i.e. Judge Mr. A. P. Raghuvanshi) no oral argument was permitted by
th
the new Judge, who eventually pronounced the judgment on 20 February, 2010.
That was inspite of the request made by the Counsel appearing for the plaintiff to
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4
place the matter for oral arguments. The question is whether the course adopted
by the new Judge (Mr. A. P. Raghuvanshi) can be said to be permissible in law ? It
is rudimentary that the Court has to provide fair opportunity to both the parties
and consider their oral arguments. The requirement of hearing oral arguments by
the Judge, who finally pronounces or writes the Judgment, is not only intrinsic in
the scheme of principles of natural justice but is mandatory. For, on plain language
of Section 33 of the Code of Civil Procedure, it is obvious that the judgment can
be pronounced only after the case has been heard. That means, after the oral
arguments are heard. Indeed, this provision refers to the term “Court”, but this
word will have to be construed as “Judge” who finally pronounces or writes the
Judgment. Further, Order XX Rule 1 also envisages that the Court (read Judge),
after the case has been heard, shall pronounce Judgment in the manner provided
therein. Notably, Rule 2 of Order XX is the only exception to the Rule that the
Judge who has heard the oral arguments should himself pronounce the Judgment.
In other words, the Judgment can be pronounced only by the Judge, who has
heard the oral arguments. In that, Rule 2 envisages that a Judge shall pronounce a
judgment written, but not pronounced, by his predecessor. That is not the case on
hand. Admittedly, in the present case the Judge who had heard the oral
arguments was transferred before pronouncing the Judgment or for that matter
writing the Judgment. In such a situation, the new Judge has had no option but to
hear the oral arguments afresh and only then pronounce the Judgment. The fact
that the parties have already filed written submissions or gist of oral arguments
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5
advanced before the predecessor Judge, is of no avail. In as much as, submission
of written arguments cannot supplant the requirement of oral arguments and
cannot extricate or dispense with the same. The provision pressed into service by
the Counsel for the respondent by no stretch of imagination dispenses with the
requirement of oral arguments. We think it apposite to advert to the said
provision, namely, Order XVIII Rule 2(3A), which reads thus:
“(3A) Any party may address oral arguments in a case, and shall, before he
concludes the oral arguments, if any, submit if the Court so permits
concisely and under distinct headings written arguments in support of his
case to the Court and such written arguments shall form part of the
record.”
This provision has come into force after the amendment of 2002. Going by
the plain language of this provision, there is nothing to suggest that the process of
oral arguments is completely dispensed with. On the other hand, filing of written
arguments is not mandatory and is subject to such order to be passed by the
Court. In other words, the provision is an enabling provision authorizing the Court
to issue direction to the parties to file written arguments in support of their case.
That, however, is in addition to the oral arguments already advanced or to be
advanced in the said case. If such written arguments in support of the case is filed
by the parties, the same would form part of the record of the case. Even so, it
would not dispense with the requirement of oral arguments to be advanced before
the Judge who is expected to pronounce the Judgment. The word “may” in the
opening part of this provision does not mean that oral arguments are optional. We
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6
cannot be oblivious to the other provisions referred to hitherto which makes it
mandatory to hear the oral arguments before pronouncement of the Judgment by
the Judge concerned. At the same time, the expression “shall” occurring therein is
intended to make “filing of the written arguments before the conclusion of the
oral arguments” mandatory, and subject to the permission of the Court. Suffice it
to observe that the oral arguments are indispensable.
7. Taking any view of the matter, we find substance in the grievance made by
the learned Counsel for the appellant that the judgment under appeal suffers from
the manifest noncompliance of the mandatory procedure by the new Judge
before pronouncing the judgment. On this count alone the judgment under appeal
deserves to be set aside and the parties relegated before the trial Court for
rehearing of the oral arguments. The trial Court will have to offer opportunity to
both the parties to advance their oral arguments and only thereafter pronounce
the judgment on the basis of the said oral arguments and the material on record
including the written submissions already filed by both the parties which form
part of the record.
7. Learned Counsel for the respondent was at pains to persuade us to decide
the present appeal on merits, as according to him the reliefs claimed by the
appellant/plaintiff cannot be countenanced in view of the well settled legal
position. We are afraid, it is not possible to accede to this request. The issues that
may arise for consideration including maintainability of the relief, if any, will have
to be addressed by the trial Court in the first instanceso that the aggrieved party
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7
may have remedy of at least one appeal before the appellate forum, besides the
appellate Court will have the advantage of the opinion of the trial Court on the
contentious issues. Understood thus, in our opinion, this appeal ought to succeed.
We, therefore, proceed to pass the following order:
: O R D E R :
th
(a) The impugned judgment and decree dated 20 February, 2010
passed by the Civil Judge, Senior Division, Pune in Special Civil Suit
No. 667 of 2004 is quashed and set aside. Instead, the said suit is
restored to the file of the trial Court to its original number to be
proceeded from the stage of oral arguments. The trial Court shall
endeavor to dispose of the suit as expeditiously as possible and
preferably within four months from today.
(b) We make it clear that all questions that may arise for consideration
before the trial Court will have to be decided on its own merits and
in accordance with law uninfluenced by any observations made in
the impugned judgment and decree which stands effaced from the
record in terms of the order passed by us today.
rd
(c) The parties shall appear before the trial Court on 23 July, 2010 at
11.00 a.m. or such other time when the Court resumes the court
proceedings, whichever is earlier, when the concerned Judge shall
assign appropriate date for hearing oral arguments as may be
convenient to him, while ensuring that the suit is finally disposed of
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8
within the specified time.
(d) The interim order, which was operating during the pendency of the
suit, shall continue to operate till the disposal of the suit.
(e) No order as to costs.
Sd/ Sd/
(A. A. SAYED, J.) (A. M. KHANWILKAR, J.)
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 577 OF 2010
RUKHANA ASSOCIATES )
A partnership firm having its principal )
place of business at Pheroze Sadan, )
rd
3 Floor, Plot No. 10, Sion – Matunga )
Road, Mumbai – 400 022. ) ... ... Appellant.
Versus
E-SQUARE LEISURE PVT. LTD. )
(Erstwhile Ganatra Hotels Pvt. Ltd.) )
A private limited company having its )
th
registered office at Lens View Bldg., 6 )
Floor, Viradesai Road, Opp. Country )
Club, Andheri West, Mumbai – 400 053. ) ... ... Respondent.
Mr. A. Y. Sakhare, Sr. Advocate with Mr. V. P. Sawant &
Ms. Usha Rahi i/by M/s. Mayur Narendra & Co. for the Appellant.
Mr. Vivek Kantawala with Ms. Sneha Nanandkar i/by M/s. Vivek
Kantawala & Co., for the Respondent.
CORAM : A. M. KHANWILKAR and
A. A. SAYED, JJ.
DATED : 2ND JULY, 2010.
ORAL JUDGMENT (Per A. M. Khanwilkar, J.):
Heard learned Counsel for the parties.
2. Admit.
3. By consent, the appeal is taken up for final disposal forthwith.
th
4. The appeal arises out of the judgment and decree dated 20 February, 2010
passed by the Civil Judge, Senior Division, Pune, in Special Civil Suit No. 667 of
::: Downloaded on - 01/04/2024 15:39:49 :::
2
2004. The appellant/plaintiff filed the said suit for specific performance of
actionable claim and declaration. The said suit has been dismissed by the trial
Court by passing the following order :
“1. The suit is dismissed.
2. The Plaintiff to pay the deficit Court fees of Rs.1,00,225/ within a
period of one month from the date of decree and in default of payment of
Court fees by the plaintiff, precept be issued to the Collector to recover the
deficit court fees from the plaintiff as arrears of land revenue.
3. Decree be drawn accordingly.”
For the nature of the order that we propose to pass and considering the principal
grievance made on behalf of the appellant, it is not necessary to advert to all the
factual matrix of the case. The relevant facts on the basis of which the appeal can
be disposed of are that the suit proceeded for trial before the Judge Mr. Chilbule.
th
He recorded the evidence of the witnesses. On 25 January, 2010, the oral
arguments were advanced by the parties before the abovenamed Judge, who had
recorded the evidence. The said Judge directed the parties to file gist of oral
th
arguments and adjourned the case to 30 January, 2010. In compliance of the said
direction, the parties filed their gist of oral arguments. However, before the
judgment was pronounced, the said Judge was transferred and in his place the
present Judge Mr. A. P. Raghuvanshi, Civil Judge, Senior Division, was appointed.
Naturally, therefore, the suit was to now proceed before the newly appointed
Judge. Accordingly, when the suit appeared on the board of the new Judge, Mr. A.
::: Downloaded on - 01/04/2024 15:39:49 :::
3
th
P. Raghuvanshi, on 11 February, 2010, the Plaintiff through Counsel requested
the new Judge to place the matter for oral arguments on a convenient date.
However, the Judge was of the opinion that since the gist of oral arguments was
already on record, it was unnecessary to place the matter for oral arguments
afresh. Admittedly, without placing the matter for oral arguments, the impugned
th
judgment came to be pronounced on 20 February, 2010. It is in this background,
the appellant has approached this Court by way of this appeal.
5. The grievance of the appellant is that the requirement of oral arguments
could not have been dispensed with by the newly appointed Judge. That was
mandatory. The respondent on the other hand contends that since the gist of oral
arguments were already placed on record by both the parties, in view of the
expansive provision contained in Order XVIII Rule 2(3A) it was not necessary for
the concerned Judge to once again hear the oral arguments before pronouncing
the judgment. This is the limited controversy that we are called upon to address at
the outset in the present appeal.
6. As aforesaid, it is common ground that oral argument was concluded on
th
25 January, 2010 before Judge Chilbule, (the predecessor of Mr. A. P.
Raghuvanshi, Civil Judge, Senior Division). Before pronouncement of the
judgment, Judge Chilbule was transferred. But after the new Judge was appointed
in his place (i.e. Judge Mr. A. P. Raghuvanshi) no oral argument was permitted by
th
the new Judge, who eventually pronounced the judgment on 20 February, 2010.
That was inspite of the request made by the Counsel appearing for the plaintiff to
::: Downloaded on - 01/04/2024 15:39:49 :::
4
place the matter for oral arguments. The question is whether the course adopted
by the new Judge (Mr. A. P. Raghuvanshi) can be said to be permissible in law ? It
is rudimentary that the Court has to provide fair opportunity to both the parties
and consider their oral arguments. The requirement of hearing oral arguments by
the Judge, who finally pronounces or writes the Judgment, is not only intrinsic in
the scheme of principles of natural justice but is mandatory. For, on plain language
of Section 33 of the Code of Civil Procedure, it is obvious that the judgment can
be pronounced only after the case has been heard. That means, after the oral
arguments are heard. Indeed, this provision refers to the term “Court”, but this
word will have to be construed as “Judge” who finally pronounces or writes the
Judgment. Further, Order XX Rule 1 also envisages that the Court (read Judge),
after the case has been heard, shall pronounce Judgment in the manner provided
therein. Notably, Rule 2 of Order XX is the only exception to the Rule that the
Judge who has heard the oral arguments should himself pronounce the Judgment.
In other words, the Judgment can be pronounced only by the Judge, who has
heard the oral arguments. In that, Rule 2 envisages that a Judge shall pronounce a
judgment written, but not pronounced, by his predecessor. That is not the case on
hand. Admittedly, in the present case the Judge who had heard the oral
arguments was transferred before pronouncing the Judgment or for that matter
writing the Judgment. In such a situation, the new Judge has had no option but to
hear the oral arguments afresh and only then pronounce the Judgment. The fact
that the parties have already filed written submissions or gist of oral arguments
::: Downloaded on - 01/04/2024 15:39:49 :::
5
advanced before the predecessor Judge, is of no avail. In as much as, submission
of written arguments cannot supplant the requirement of oral arguments and
cannot extricate or dispense with the same. The provision pressed into service by
the Counsel for the respondent by no stretch of imagination dispenses with the
requirement of oral arguments. We think it apposite to advert to the said
provision, namely, Order XVIII Rule 2(3A), which reads thus:
“(3A) Any party may address oral arguments in a case, and shall, before he
concludes the oral arguments, if any, submit if the Court so permits
concisely and under distinct headings written arguments in support of his
case to the Court and such written arguments shall form part of the
record.”
This provision has come into force after the amendment of 2002. Going by
the plain language of this provision, there is nothing to suggest that the process of
oral arguments is completely dispensed with. On the other hand, filing of written
arguments is not mandatory and is subject to such order to be passed by the
Court. In other words, the provision is an enabling provision authorizing the Court
to issue direction to the parties to file written arguments in support of their case.
That, however, is in addition to the oral arguments already advanced or to be
advanced in the said case. If such written arguments in support of the case is filed
by the parties, the same would form part of the record of the case. Even so, it
would not dispense with the requirement of oral arguments to be advanced before
the Judge who is expected to pronounce the Judgment. The word “may” in the
opening part of this provision does not mean that oral arguments are optional. We
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6
cannot be oblivious to the other provisions referred to hitherto which makes it
mandatory to hear the oral arguments before pronouncement of the Judgment by
the Judge concerned. At the same time, the expression “shall” occurring therein is
intended to make “filing of the written arguments before the conclusion of the
oral arguments” mandatory, and subject to the permission of the Court. Suffice it
to observe that the oral arguments are indispensable.
7. Taking any view of the matter, we find substance in the grievance made by
the learned Counsel for the appellant that the judgment under appeal suffers from
the manifest noncompliance of the mandatory procedure by the new Judge
before pronouncing the judgment. On this count alone the judgment under appeal
deserves to be set aside and the parties relegated before the trial Court for
rehearing of the oral arguments. The trial Court will have to offer opportunity to
both the parties to advance their oral arguments and only thereafter pronounce
the judgment on the basis of the said oral arguments and the material on record
including the written submissions already filed by both the parties which form
part of the record.
7. Learned Counsel for the respondent was at pains to persuade us to decide
the present appeal on merits, as according to him the reliefs claimed by the
appellant/plaintiff cannot be countenanced in view of the well settled legal
position. We are afraid, it is not possible to accede to this request. The issues that
may arise for consideration including maintainability of the relief, if any, will have
to be addressed by the trial Court in the first instanceso that the aggrieved party
::: Downloaded on - 01/04/2024 15:39:49 :::
7
may have remedy of at least one appeal before the appellate forum, besides the
appellate Court will have the advantage of the opinion of the trial Court on the
contentious issues. Understood thus, in our opinion, this appeal ought to succeed.
We, therefore, proceed to pass the following order:
: O R D E R :
th
(a) The impugned judgment and decree dated 20 February, 2010
passed by the Civil Judge, Senior Division, Pune in Special Civil Suit
No. 667 of 2004 is quashed and set aside. Instead, the said suit is
restored to the file of the trial Court to its original number to be
proceeded from the stage of oral arguments. The trial Court shall
endeavor to dispose of the suit as expeditiously as possible and
preferably within four months from today.
(b) We make it clear that all questions that may arise for consideration
before the trial Court will have to be decided on its own merits and
in accordance with law uninfluenced by any observations made in
the impugned judgment and decree which stands effaced from the
record in terms of the order passed by us today.
rd
(c) The parties shall appear before the trial Court on 23 July, 2010 at
11.00 a.m. or such other time when the Court resumes the court
proceedings, whichever is earlier, when the concerned Judge shall
assign appropriate date for hearing oral arguments as may be
convenient to him, while ensuring that the suit is finally disposed of
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8
within the specified time.
(d) The interim order, which was operating during the pendency of the
suit, shall continue to operate till the disposal of the suit.
(e) No order as to costs.
Sd/ Sd/
(A. A. SAYED, J.) (A. M. KHANWILKAR, J.)
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