Karnataka High Court
The Advocates Association, Bangalore ... vs Registrar (Judicial), High Court Of ... on 2 June, 2000
Equivalent citations: ILR2001KAR66, 2001(1)KARLJ220
Author: Manjula Chellur
Bench: Manjula Chellur
ORDER
1.The present writ petition has been filed for quashing the circular dated 29-10-1999 (Annexure-A) issued by the Registrar (Judicial) of this Court which had been issued pursuant to the order dated 15-10-1999 passed by one of us in W.P. No. 16776 of 1996, the operative portion of which is to the following effect.--
"3. But before parting, I wish to notice the unwarranted practice which seems to have developed in the Registry of this Court. It may be because the persons dealing with applications like the present one, are not aware of the rules of procedure and the consequence of treating petitions for restoration as IAs.
4. IA on its very face, means interlocutory application and it can only be filed during the subsistence of a judicial proceeding. But once a judicial proceeding comes to an end, either on withdrawal or dismissal simpliciter for default, or on merits, then and thereafter if the said order is sought to be recalled, reviewed or the proceeding is sought to be restored then the application has to be registered as a C.P. (civil petition) and only when the C.P. is allowed, the final order in the concerned judicial proceeding will stand modified, reviewed or recalled. Application filed for recalling the order disposing of the cases by way of dismissal or otherwise has to be necessarily registered as C.Ps.
5. The Registrar General and Registrar (Judicial) of this Court shall bring to the notice of all concerned officials in the Registry about this fact and take it from them in writing that they have understood the importance of this order. In future, if they are found to have committed any mistake of this nature, the Registrars concerned will be duty-bound to initiate necessary disciplinary action against such erring officials, because such mistakes on their part are telling upon the very judicial functioning causing unnecessary confusion".
2. The above judicial order as also the consequent circular have been questioned on the ground that the same are contrary to Rule 1(1) and (3) of Chapter X of the Karnataka High Court Rules, 1959 (in short the 'Rules'). The relevant part of the circular which was issued by the Registrar (Judicial) pursuant to the above order was to the following effect:--
"In view of the order dated 15-10-1999 passed in W.P. No. 16776 of 1996, it is hereby directed that hereafter in disposed of cases (whether on merit or otherwise), applications filed (for recalling/review of order or for restoration of proceedings etc.) shall be registered as civil petitions and any omission in this regard will be viewed seriously".
3. Sri R.N. Narasimhamurthy, learned Senior Advocate, who appeared for the petitioners, by placing reliance on sub-rule (1) of Rule 1 of Chapter X of the Rules sought to impress that application filed for recalling of the orders/judgments by which the proceedings are disposed of finally one way or the other are merely interlocutory in nature and therefore such recalling application have to be registered only as interlocutory applications (IAs) and not as civil petitions in terms of Chapter VII of the Rules. But during the course of arguments, on a close examination of the sub-rule (3) of Rule 1 of Chapter X, it became glaringly clear that the applications filed for recalling the final orders cannot be equated with interlocutory applications.
4. For a better appreciation of the above aspect, it is appropriate to reproduce sub-rules (1) and (3) of Rule 1 of Chapter X in its entirety. It reads thus.--
"1(1) All applications made during the pendency of an appeal, reference, petition or other matter presented to and pending in the High Court and connected with the same or with any decree, order or sentence or other proceedings of the subordinate Court which is the subject-matter of the same, and praying for any interim relief or order, shall be called Interlocutory Applications and be consecutively numbered separately in each appeal, reference, petition or matter as the case may be.
(2) xxx xxx xxx.
(3) All applications made after the disposal of any such appeal, petition or reference or other matter, connected with it or with any decree or order passed therein, other than those for review of any judgment of this Court or for leave to appeal to Supreme Court which shall be designated as petitions under Chapter VII, shall also be called Interlocutory Applications and be numbered as provided for in sub-rule (1)".
5. Sub-rule (1) of Rule 1 of Chapter X inter alia provides that all applications made during the pendency of an appeal, reference, petitions or other matter in which some interim relief or order is sought for shall be called interlocutory applications and have to be consecutively numbered separately in such appeal etc. This rule obviously has no application to the recalling applications which are filed not during the pendency of the case but after its disposal by a final order.
6. There are occasions, when a party interested in the proceedings already disposed of, files applications seeking some directions like for refunds, remittance, staying of the final orders, extension of time for compliance of the order and the like. Sub-rule (3) of Rule 1 of Chapter X as reproduced above, provides that all such applications have to be treated and numbered like interlocutory applications in the manner provided in sub-rule (1), but with an exception that it shall not apply to the applications filed for review of a judgment of this Court or applications filed for leave to appeal to Supreme Court and the latter type of applications are to be designated as petitions under Chapter VII. It could not be seriously disputed at the Bar that request made to Court for recalling/reviewing or vacating the order of its own, stands on the same footing invoking inherent power of the Court to meet the ends of justice.
7. In the case of Budhia Swain and Others v Gopinath Deb and Others, the Supreme Court by relying on its earlier judgments in the cases of A.R. Antulay v R.S. Nayak and Indian Bank v Satyam Fibres (India) Private Limited, has held that.--
"In our opinion a Tribunal or a Court may recall an order earlier made by it if.--
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent;
(ii) there exists fraud or collusion in obtaining the judgment;
(iii) there has been a mistake of the Court prejudicing a party; or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for reopening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence".
8. In the above view of the matter, it is quite clear that the impugned circular issued by the Registrar (Judicial) is quite in confirmity with the provisions contained in sub-rule (3) of Rule 1 of Chapter X read with Chapter VII of the Rules and no exception can be taken thereto. Anyhow, it has been brought to our notice that subsequent to issuance of circular, on the basis of certain representation made on behalf of the petitioner-Association the Hon'ble Chief Justice in order to further streamline the effective disposal of recalling application and in order to ventilate certain difficulties pointed to him directed for registration of applications filed for review as Review Petition (RP). Consequently, the Registrar (Judicial) issued memo dated 1-12-1999 which is to the following effect.--
"In partial modification of the Memo No. HCE 675/99, dated 8-11-1999, it is hereby directed that petitions filed for review of orders shall be registered as review petitions i.e., R.P."
9. Apart from questioning the impugned circular as modified by the subsequent memo on the ground that it was contrary to the rules, which as noticed above is clearly untenable, neither Mr. R.N. Narasimhamurthy, learned Senior Counsel, who appeared in the case for the first 2 to 3 hearings, nor Mr. S.P. Shankar and Mr. Udaya Holla, learned Senior Advocates, who subsequently appeared in the cases could bring to our notice any material inconvenience caused to the litigants in registering the recalling applications as R.Ps. On the other hand, from the informations gathered from the Registrar (Judicial), the present practice has helped in expeditious disposal of recalling applications since now an effective track can be maintained for disposal of petitions through computer programming, which ultimately enure to the benefits of litigants. Moreover, as we have often found that placing review/recalling applications which were numbered as I.As. were not being listed for consideration for years for one or the other reason thereby causing serious prejudice to the interest of the litigant and resulting in serious hindrance in effective and expeditious disposal of age old matters.
10. For the aforesaid reasons, we do not find any ground to grant relief as sought for. The writ petition is accordingly dismissed. Anyhow there will be no order as to costs.