Gujarat High Court
Mr vs Desai For Petitioner on 12 October, 2011
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION No 5686 of 2000
in
SPECIAL CIVIL APPLICATIONNo 9713 of 1999
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VINAYAKRAO S DESAI Versus INTERLINK PETROLEUM LTD
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MR VS DESAI for Petitioner MR SURESH M SHAH for Respondent No. 1 MR PARESH UPADHYAY for Respondent No. 3
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CORAM : MR.JUSTICE KUNDAN SINGH Date of Order: 01/03/2001 C.A.V. ORDER This application is preferred by the original respondent no. 1 to direct all in the cause title, subject-matter and petition as a whole the deletion jointly both the applicant - respondent 1 and the opponents no. 3 and 2 and alternatively without prejudice to the reliefs sought aforesaid to direct the deletion one after the other successively as of first the applicant-respondent no. 1 and secondly the opponent no. 3 - respondent no. 2 or the first opponent no.
respondent no. 2 and secondly the applicant respondent no. 1 and further alternatively without prejudice to the aforesaid reliefs sought to direct the deletion at least severally of the opponent no. 3 respondent no. 2.
2.The applicant appeared party in person and assailed the impleadment in the petition of his and the opponent no.3 on the following main among other grounds :
(i) This Hon'ble Court on its extraordinary original civil jurisdiction side in the petition purportedly "in the matter of Article (s) 14 and 226 of the Constitution of India" patently lacks jurisdiction thereunder over first the applicant; secondly the opponent no. 3;
and thirdly the alleged subject-matter therein.
(ii) The applicant is not the State and no fundamental right is enforceable against him in the petition.
(iii) With the applicant-advocate's former contractual right to his fees against the opponent 1 and 2 - clients having not only already merged and matured by the respective Orders below Ex. 42 and at ex. 51 in the suit into his decretal right thereto but also having already been fastened and finalised into a rule of res judicata between them under the civil law proper therefor, the opponents 1 and 2 - clients lack and do not hold any right whatsoever to claim relief against the applicant-advocate for being set free of the execution-cum-enforcement thereof to his monetary entitlement thereunder by a writ of certiorari under the constitutional law inapplicable and unmeant therefor.
(iv) With neither a fundamental right nor a statutory or otherwise legal right availing to the opponent no. 1 and 2 much less having been cited and set out by them in the petition anywhere against the applicant, the impleadment of his in particular is arbitrary, capricious, frivolous, fanciful and unsustainable howsoever at all.
(v) With and in the face of: first the opponents and 2s' own original plea to and unto the opponent 3 by their both reply ex. 42 as at ex.. 48 as well as written arguments at ex.. 50 to do tax the applicant's fees in the bill of costs in the suit on a lower basis, the plea duty referred to and dealt with by the opponent 3 in his speaking Order blow ex. 42 itself; secondly their thereby acquiescence into and acceptance of the opponent 3's jurisdiction in the very suit itself to do tax the applicant's fees without objecting as such then to his jurisdiction therefor at all; and thirdly their consequentially inflicted deprivation of opportunity to (i)) the applicant, (ii) the opponent 3 himself and (iii) this Hon'ble Court in the incidence of the petition too, of the opponent no.3's own preliminary decision and speaking Order along with the reasons rightfully first made on the R & Ps of the suit itself as to whether, that and why for he has had his jurisdiction duly invocable, invoked and exercised in the facts of the case; before adjudicating over the merits themselves of the case in the suit and much before or rather timely before this Hon'ble Court may at all have to ever hear or entertain the opponents 1 and 2 thereover in the petition, etc. there does not lie within the opponents 1 and 2' reach to implead the opponent 3 upon the alleged jurisdictional lack of his in the case quite as an after-thought only.
(vi) The opponent 3 qua the 5th Joint Civil Judge-cum-Presiding Officer of the Civil Court, Baroda; on its ordinary original civil jurisdiction side trying the application for taxation of costs at and pronouncing the judgment and order below ex. 42 and drawing up in terms thereof the Final Order at ex. 51 in the suit, is nonetheless a judiciary and in the judicial capacity neither the State nor the authority amenable to the process of this Hon'ble Court against him in the petition.
(vii) The opponent 3 is the learned Judge and additionally conferred with protection under Sub.S. (1) of S.3 of the Judges (Protection) Act, 1985 and no fundamental right is enforceable against him anyway either.
(viii) Section 3 of the Judges (Protection) Act, 1985 at and by its Sub-S. (1) enacts that :
"Additional protection to Judges :-
(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-sec. (2), no Court shall entertain or conitnue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him, when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function." and does thereby or thereunder additionally and expressly or else necessarily impliedly delimit and exclude jurisdiction of or exercise thereof by this Hon'ble Court at the instance of the opponents 1 and 2 in the petition versus the opponent 3 at all for his having pronounced the Speaking Order below Ex. 42 and drawn the Final Order at ex. 51 in the suit impugning the same and claiming thereagainst a writ of certiorari under Article 226 of the Constitution.
(ix) The Orders at Annexures D and E to the petition being respectively the judicial decision over the subject-matter of ex.
42 and the formal-and-final expression in terms thereof at ex. 51 in the suit are non-justiciable in the petition altogether.
(x) The impleadment in the petition of the party-respondents 1 and 2 is prejudicially affecting and seriously interfering with the decretal right, title and interest of the former and the jurisdictional power and exercise thereof by the latter, an abuse of the process of this Hon'ble Court, the instance or otherwise vulnerable to a gross miscarriage of justice if not nibbed in the bud; calculated to inflict an irreparable injury and a substantial failure or justice; and the one forbidden by the ends of justice; and opposed to the administration of justice according to law.
(xi) The opponent 3 on his judicial side is neither a party nor a privy nor a person participating or having participated or partaken as such in the suit.
(xii) Rr. 51(ii) and 188 of the GHC Rules, 1993 (briefly, the "Rules") are contravened in making the opponent 3 a party respondent 2 in the petition without making therewith a regular stamped application therefor and the affidavit-in-support thereof.
(xiii) R.51 (ii) is mandatory and the contravention thereof without along with the petition itself having been made the said application and by or in having in stead impleaded straightway the opponent 3 as the respondent 2 in the petition has rendered the impleadment void ab initio.
(xiv) Alternatively and without prejudice to sub-para (13) above; assuming without admission that R. 51 (ii) is directory only, the contravention thereof renders the impleadment of the opponent 3 voidable in the petition; also rightfully at the instance of this applicant qua decree-holder, co-respondent 1 and adversely getting affected person herein, and should therefore be adjudged and directed to be deleted as such for the reason that the said rule has not only not been strictly complied with but also is not even substantially complied with in the petition.
(xv) The impleadment of the applicant and the opponent 3 as the co-respondents jointly in the petition is contrary to, inconsistent with, violative of, barred and forbidden by, misconceived and misdirected in and nonmaintainable and untenable at law, uncaused for, jurisdictionless, illegal, unlawful, unconstitutional, substantively invalid, materially irregular, procedurally improper and should accordingly be adjudged and directed to be deleted in respect of both of them jointly.
(xvi) Neither the applicant nor the opponent 3 is amenable to being impleaded severally in the petition nor is either impleaded severally therein.
(xvii) With no cause of action specifically averred of anywhere in the petition and with the otherwise grounds stated of therein shown to be arising out of one and the same act or transaction of the opponent no. 3's pronouncement of the Order at Annexure D to the petition followed up by his drawl in terms thereof of the Order at Annexure-E thereto, there appear to be but one and the same said purported cause of action for impleadment of both the co-respondents 1 and 2 jointly in the petition and the impleadment of both them thereupon is accordingly assailed herein first jointly, secondly successively and thirdly only severally.
(xviii) There ought to be deleted in and from all the cause-title , subject-matter and petition as a whole in the facts and circumstances of the case both the applicant and the opponent 3 jointly or;
alternatively and without prejudice
thereto, one after the other
successively, i.e. either first the
applicant and secondly the opponent 3 or first the opponent 3 and secondly the applicant, or else, alternatively and without prejudice thereto, at least severally the opponent 3, as might be deemed just."
3.The applicant read out paragraph no. 2 of the application and the grounds stated above and argued the same at length.
4.The contention of the applicant is that the respondent no. 2 is protected by the Judges (Protection) Act, 1985 and an additional protection has been provided under Section 3. The statement of objects and reasons have also been read out by him which reads as follows :
"Judiciary is one of the main pillars of parliamentary democracy as envisaged by the Constitution. It is essential to provide for all immunities necessary to enable Judges to act fearlessly and impartially in the discharge of their judicial duties. It will be difficult for the Judge to function if their actions in court are made subject to legal proceedings either civil or criminal."
Hence this Bill.
New Delhi.
The 12th August, 1985."
5.Today during the course of arguments, the applicant presented a draft amendment in the memo of the petition by addition of paragraph 2A, which reads as under :
"2.A.Basic principles underlying the statute law of and under O.1 Rule 3 and 10 (2); and not of or under such as, O.1, R. 9 and 10A, of the Code of Civil Procedure, 1908 are immediately applicable hereto and sought to being relied on as such at once herein. Moreover, any and every act of acquiescence and/or non-opposition by or on behalf of the opponent no.3, whether by way of written pleading inclusive or not of affidavit and/or, as the case may, oral arguments, to the opponents no. 1 and 2's act of impleadment of his qua the party - respondent 2 in the petition neither vests jurisdiction in this Hon'ble Court; which it lacks, to adjudicate over his judicial orders in issue therein much less to allow or approve of howsoever the impleadment of his in issue therein, nor does it render proper the said impleadment brought out in question herein. Notwithstanding the opponent no. 3's stand or ultimate stand, if any, as to the impleadment in question herein; or rather all the more after his disclosed (written and/or oral) stand or ultimate stand, if any, whether in support or not of any one or the other of the claims prayed for herein, therefore, this application independently thereof deserves to be heard and determined in the facts of the case, according to law including the basic principles of law and the precedent-law attendant thereon."
6.He has also contended that the respondent no. 1 is a legal practitioner and he cannot be subjected to any proceeding even in the writ petition. The main contention of the applicant is that this Court has no jurisdiction to try the respondents no. 1 and 2 and lacks jurisdiction to quash the impugned orders passed by the respondent no. 2. There is no infringement of any fundamental right under Article 14 of the Constitution of India. Hence, this Court lacs its jurisdiction and deletion of the respondents no. 1 and 2 is necessary. In support of his case, the applicant has cited following decisions of the Supreme Court.
i. Smt. Ujjan Bai Vs. State of
Uttarpradesh, reported in AIR 1962
Supreme Court, 1621.
ii. Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and others, reported in AIR 1960 Supreme Court, 801.
iii. Supreme Court Employees' Welfare
Association Vs. Union of India and
Another, reported in 1989 (4)
Supreme Court 187.
iv. Sobhag Singh and others Vs. Jai Singh and others, reported in AIR 1968 Supreme Court 1328.
v. Smt. Triveniben Vs. State of Gujarat, reported in 1989 (1) SCC 678.
vi. Naresh Shridhar Mirajkar Vs. Puthezhata Raman Menon, reported in AIR 1856 Supreme Court 1.
7.I have considered the contention of Mr. Desai applicant. In the present case, Rule of hearing of the main petition has already been issued vide order dated 16-12-1999 and hence the respondent no. 1 would be aggrieved and affected party, in case, the writ petition is allowed. While the respondent no. 2 is judicial members who has passed the impugned orders sought to be quashed. As a rule of practice whenever any judicial authority or quasi judicial authority passes any order and that order is challenged before this Court under Article 226 and 227 of the Constitution of India, as a practice and precedent this Court requires the authority concerned to be impleaded as a party who may be represented by the Assistant Government Pleader or any other counsel appointed on behalf of the authority concerned.
8.In the facts and circumstances of this case, the respondents no. 1 and 2 are necessary and proper parties and they cannot be deleted from the array of the petition at this stage.
9.I do not find any substance in this civil application and therefore the same deserves to be dismissed. Accordingly, this Civil Application is dismissed.
Date:-01-03-2001.(Kundan Singh, J.)