Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2022
(Arising out of SLP (CIVIL) NO. 20623 of 2019)
SURESH G. RAMNANI …APPELLANT(S)
VERSUS
AURELIA ANA DE PIEDADE
MIRANDA @ ARIYA
ALVARES (DEAD THR. LRS) & ORS. …RESPONDENT(S)
J U D G M E N T
VIKRAM NATH,J.
Leave granted.
2. This is defendant’s appeal assailing the correctness of the
order dated 16.07.2019 passed by Justice Prithviraj K. Chavan,
rejecting the Misc. 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 High Court Appellate Side Rules prayer (a)
of the application cannot be granted.
Signature Not Verified
Digitally signed by
Jatinder Kaur
Date: 2022.11.10
12:52:45 IST
Reason:
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3. Mr. N. Fernandes, learned Counsel submits that
matter be placed after 5th October, 2019.
4. At his request, stand over to 07.10.2019”
3. A bare reading of the impugned order extracted above
would raise a hundred doubts in the mind as to why this petition
has been filed. However trivial, we may consider the issue at
hand, but considering the seriousness and the length of
arguments advanced by the learned Senior Counsels, we were
compelled to reserve the judgment and give a serious thought to
the issue.
FACTS
4. The respondent instituted a suit on 11.01.1985 for
declaration and permanent injunction registered as Regular Suit
No.21 of 1985 in the court of Civil Judge, Junior Division, at
Margao titled “Mrs. Aurelia Ana da Piedade Miranda Araujo
Alvares and others vs. Mr. Gobindram Jethanand Ramnani and
others”. After the contest, the Trial Court decreed the suit vide
judgment and order dated 26.08.2003. The appellant preferred
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an appeal under section 96 of Code of Civil Procedure, 1908 , in
the court of District Judge at Margao, Goa, registered as Regular
Civil Appeal No.83 of 2013, titled “Mr. Suresh G. Ramnani Vs.
Mrs. Aurelia Ana da Piedade Miranda alias Araiyo Alvares and
others”. This appeal initially came to be dismissed vide judgment
and order dated 22.04.2008. The second appeal under section
100 CPC was preferred by the appellant which came to be
allowed vide judgment and order dated 02.03.2012. The High
Court remanded the matter to the First Appellate Court for a
fresh decision. After remand the first appeal was again dismissed
vide judgment and order dated 09.07.2012.
5. Aggrieved by the same, Second Appeal No.98 of 2013 was
preferred by the appellant in the High Court of Bombay at Panaji,
Goa, titled “Mr. Suresh G. Ramnani vs. Mrs. Aurelia Ana da
Piedade Miranda alias Araiyo Alvares and others”. In the second
appeal judgment was reserved by Justice G.S. Patel vide order
dated 10.12.2017. It would be relevant to note that Justice Patel
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In short “CPC”
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at the relevant time was sitting at the Goa Bench of the Bombay
High Court.
6. To complete the facts, it would be relevant to mention that
Justice 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 were made before the Court (Justice Patel)
by the parties through Hybrid mode regarding the issue of
whether the parties are arriving at a settlement or not. The
second appeal was allowed vide judgment and order dated
30.01.2019. The judgment was delivered through virtual mode
by the learned Judge while sitting at Bombay.
7. A Review petition was filed by the respondent on
12.02.2019 registered as Civil Review Application No. 7 of 2019.
It was listed before Justice Nutan D. Sardessai and after hearing
learned counsel for the review 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.”
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8. At this stage when the notice of the review was served, an
application was moved by the appellant on 16.07.2019
registered as Misc. (Civil) Application No.526 of 2019 with the
prayer that the Civil Review Application No.7 of 2019 be ordered
to be transferred and be placed before Justice G.S. Patel for final
disposal. The said application was supported by an affidavit
dated 06.06.2019. The prayer clause as contained 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 ordered to be transferred
and be placed before his Lordship
Justice G.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
order dated 16.07.2019 by Justice Prithviraj K. Chavan. We are
conscious of the fact that normally the names of the judges may
not be required to be mentioned in the order but considering the
issue involved in the matter, the names have been mentioned.
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10. We have heard learned senior counsel for the parties and
perused the material on record.
11. Shri Huzefa Ahmadi, learned senior counsel for the
appellant submitted that review petition should be heard by the
same Hon’ble Judge under the provisions of Order 47 Rule 5 of
the CPC read with High Court amendments made thereunder for
the State of Maharashtra. Order 47 Rule 5 was substituted by
Maharashtra Government Gazette dated 15.09.1983 to be
effective from 01.10.1983. The said provision reads as under:
“5. Application for review in Court consisting of
two or more judges.- Where the Judge or Judges,
or any one of the Judge, 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 six months next after the
application from considering the decree or order to
which the 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.
HIGH COURT AMENDMENTS
Bombay - In Order XLVII, for rule 5, substitute the
following rule, namely:
“ 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
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made the order, a review of which is applied for,
continues or continue to be 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 application from considering the decree
or order to which the 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 a decree or order
passed by a 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 is applied for.” ”
12. Our attention was also drawn to Chapter XXX Rule 3(1) of
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the Rules of the Court applicable for the Bombay High Court
which also provided that it should be heard by the same Judge,
however, subject to certain situations where such Judge has
ceased to be Judge of the High Court or have ceased to sit at the
particular Bench, in that event, it would be placed before the
Regular Court of the single Judge dealing with that category of
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In short “Rules”
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the matters. The said provision i.e. Rule 3(1) of Chapter XXX of
the Rules is reproduced below:
“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 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.”
13. Referring to the above rule, Shri Ahmadi submitted that the
Rules having been framed more than 25 years back and
considering the advancement of technology and present setup
available for virtual hearing through video conferencing and the
same Judge being available at the principal seat of the Bombay
High Court, the review should have been heard by the same
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Judge. Shri Ahmadi has also placed reliance upon the following
judgments of this Court i.e.:
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● Malthesh Gudda Pooja vs. State of Karnataka
● Goel Ganga Developers India Pvt. Ltd. versus Union
of India through Secretary Ministry of
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Environment and Forests and others
14. On the other hand, Shri Nakul Dewan, learned senior
counsel appearing for the respondents submitted that the
appellant ought not to have carried the matter to this court
where the proceedings were being conducted as per the Rules.
Shri Dewan has sought to impress upon us by analyzing Rule
3(1) of Chapter XXX of the Rules to state and to 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 said
categories of the matters to which the proceedings relate i.e. the
learned Judge at the Goa Bench hearing second appeals.
Further, reliance has been placed upon by Shri Dewan on the
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(2011)15 SCC 330
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(2018) 18 SCC 257
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same judgment of Malthesh Gudda Pooja (supra). He has also
sought to distinguish the judgment in the case of Goel Ganga
Developers India Pvt. Ltd. (supra), relied upon by the appellant
as the said proceedings were relating to National Green Tribunal
and the procedure prescribed therein. Further reliance is place
upon the following two judgements:
• Maharashtra Housing & Development
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Authority vs. P V Anturkar .
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• Ratanlal Nahata v. Nandita Bose .
15. Having considered the submissions, we find that the matter
does not raise any factual issue, but it is only a question of
interpretation of the Rules, the Court’s propriety and
jurisdiction. We do not wish to go into the issue of interpreting
the Rules in order to hold as to whether the review should be
heard by Judge ‘A’ or any other Judge. However, we are of the
view that considering the overall facts and circumstances of the
case, once an application was preferred by any of the parties that
5
(2009) 3 Mh Lj 266
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(1998) 3 CALLT 348 HC
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a review may be heard by the Judge who had decided the matter
and had passed the order from which the review arose, the
matter ought to have been placed before the Chief Justice on the
administrative side rather than order being passed on the
judicial side. The proviso to Rule 3(1) of Chapter XXX of the
Rules confers this power on the Chief Justice to assign a
particular matter to a single Judge for hearing of the review
application where the single Judge concerned was not available
for the time being by reason of being on leave or otherwise as
aforesaid i.e. where he had ceased to sit at a particular Bench.
The Chief Justice, being the master of roster and being conferred
with specific powers of assigning review petitions in given
circumstances under the Rules, the learned single Judge ought
not to have dealt with the application dated 16.07.2009 (Misc.
Civil Application No.526 of 2019), but should have referred the
matter to be placed before the Chief Justice.
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16. Accordingly, in the facts and circumstances of the case, we
allow the appeal, set aside the impugned order dated 16.07.2019
and direct the registry of the High Court to place the said
application (Misc. Civil Application No.526 of 2019) on the
administrative side before the Hon’ble Chief Justice for
appropriate orders.
……………………………………J.
(ANIRUDDHA BOSE)
…………………………………..J.
(VIKRAM NATH)
NEW DELHI
NOVEMBER 10, 2022
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