Gujarat High Court
High Court Of Gujarat Through Registrar ... vs Neha Nirmalsinh Zala on 18 February, 2019
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/419/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 419 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 419 of 2019
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HIGH COURT OF GUJARAT THROUGH REGISTRAR GENERAL
Versus
NEHA NIRMALSINH ZALA
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Appearance:
MR SHALIN MEHTA, SENIOR COUNSEL with MR HEMANG M SHAH(5399)
for APPELLANT
for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 18/02/2019
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)
1. Heard Mr. Shalin Mehta, learned Senior Counsel appearing with Mr. Hemang Shah, learned counsel for the appellant.
2. It will be apt to quote the following observations of the Supreme Court in the case of High Court of Judicature of Rajasthan vs. Ramesh Chand Paliwal and another, reported in (1998) 3 SCC 72, which read as under:
"As pointed out above, under the constitutional scheme, Chief Justice is the supreme authority and the other Page 1 of 7 C/LPA/419/2019 ORDER Judges, so far as officers and servants of the High Court are concerned, have no role to play on the administrative side. Some Judges, undoubtedly, will become Chief Justices in their own turn one day, but it is imperative under the constitutional discipline that they work in tranquility. Judges have been described as "hermits". They have to live and behave like "hermits" who have no desire or aspiration, having shed it through penance. Their mission is to supply light and not heat. This is necessary so that their latent desire to run the High Court administration may not sprout before time, at least, in some cases."
3. Challenge in this appeal under clause-15 of the Letters Patent is to the order dated 30th January, 2019 passed by learned single Judge in Criminal Misc. Application No. 1 of 2018, wherein following directions have been given, which reads as under:
" Despite the fact that learned advocate Mr.Aaditya D. Bhatt has filed his appearance for and on behalf of the applicant on 20.08.2018, the Registry has no time to show his name.
Such lapses are occurring day in and day out. Not only that, the Registry has not shown whether respondent No.2 is served or not and also not shown the status of Rule.
Hence, the Registrar (Judicial) is directed to initiate disciplinary proceedings against the erring staff and report compliance thereof to this Court.
S.O. to 20.02.2019."
4. The directions as above, according to learned Senior Counsel for the appellant, are contrary to settled position as emerged from a Division Bench decision of this Court in the case Page 2 of 7 C/LPA/419/2019 ORDER of Suo Motu v. S.J. Gaekwad, Registrar, Gujarat High Court, reported in 2001 (1) GLR 752, where, in the context of directions issued by learned single Judge to take action under the Contempt of Courts Act, 1971 vis-a-vis Article 229 of the Constitution of India, by relying on earlier decision of the Apex Court and other High Courts, the Division Bench of this Court held that power of the Chief Justice or his Nominee to take disciplinary action against officers and servants of the High Court cannot be curtailed by any interference from any quarter, not even from his brother Judges. Accordingly, it is submitted that such directions contained in the impugned order are uncalled for and deserve to be quashed and set aside.
5. The explanation rendered by the Registry in paragraphs 3 to 8 of the memo of appeal reads as under:
"3. Criminal Revision Application no. 1147/17 came to be filed by respondent no.1 against respondent no.3 for challenging the judgment dated 2.2.2016 passed by the Principal Judge (Family Court), Gandhinagar in Criminal Misc. Application no. 6 of 2015.
4. The captioned matter was filed by respondent no.1 through her advocates Mr. N.D. Songara and Mr. Brijrajsinh H.Kher, Advocates. Since there was delay in filing of aforesaid Criminal Revision Application, a separate Criminal Miscellaneous Application no. 1309/18 (re- numbered as Criminal Miscellaneous Application no.1/18) came to be filed for seeking condonation of delay of 610 Page 3 of 7 C/LPA/419/2019 ORDER days. While filing the said Criminal Miscellaneous Application, Mr. N.D. Songara and Mr. Brijrajsinh H. Kher, Advocates had filed their appearance in the said application by filing an appearance note.
3. On 14.05.2018, Mr. Aaditya D. Bhatt, Advocate had filed his vakalatnama after taking "No Objection" from Mr. N.D.Songara and Mr. Brijrajsinh H. Kher, Advocates. While filing his vakalatnama, Mr. Aaditya D. Bhatt, Advocate had only mentioned Criminal Revision Application no. 1147/17.
4. Criminal Revision Application no. 1147/17 with Criminal Miscellaneous Application no. 1309/18 (re- numbered as Criminal Miscellaneous Application no. 1/18) was notified on board. On perusal of the cause list of 20.08.2018, the name of Mr. Aaditya D. Bhatt, Advocate was appearing against Criminal Revision Application no. 1147/17 whereas the name of Mr. N.D. Songara and Mr. Brijrajsinh H. Kher, Advocates appears in Criminal Miscellaneous Application no. 1309/18 (re-numbered as Criminal Miscellaneous Application no. 1/18). On perusal of the original file pertaining to Criminal Revision Application no. 1147/17, Mr. Aaditya D. Bhatt, Advocate had not filed any appearance note in Criminal Miscellaneous Application no. 1309/18 (re-numbered as Criminal Miscellaneous Application no. 1/18).
5. On 30.01.2019, Criminal Miscellaneous Application no. 1309/18 (re-numbered as Criminal Miscellaneous Application no. 1/18) was only listed on board for final hearing. On perusal of the cause list for the said date, it transpires that name of Mr. N.D. Songara and Mr. Brijrajsinh H. Kher, Advocates appears against the said application.
6. On 30.01.2019, during the course of hearing of Criminal Miscellaneous Application no. 1309/18 (re- numbered as Criminal Miscellaneous Application no. 1/18), Mr. Aaditya D. Bhatt, Advocate had informed the Hon'ble Court that he had filed his appearance on 20.08.2018 on behalf of respondent no.1."
6. Having regard to the facts and circumstances, submissions made by learned Senior Counsel on behalf of the appellant, as above, and even on verification of the facts of the case on hand, Page 4 of 7 C/LPA/419/2019 ORDER the Registry has rendered the explanation extensively in paragraphs 3 to 8 of memo of this appeal.
7. Rule 33 of Gujarat High Court Rules, 1993 in the context of above facts is reproduced below:
"33. Production of Vakalatnama by Advocate.--
An Advocate presenting an appeal or application shall
(a) produce a Vakalatnama signed by the appellant or petitioners authorizing him to do so and accepted by the Advocate in writing under his signature or
(b) when he has appeared on behalf of the appellant or petitioner in the lower court, file memorandum of appearance signed by him stating that he was an advocate on record appearing on behalf of the appellant or petitioner and that he is authorized to present the appeal or application or
(c) make a statement in writing that he has been authorized by the appellant or petitioner to present the appeal or application with an undertaking to produce a regular Vakalatnama within 2 weeks from the date of presentation.
The address of the advocate shall be stated in such Vakalatnama, memorandum of appearance or statement in writing and any subsequent change in the Advocate's address during the pendency of the appeal or application presented by him shall immediately be communicated by the Advocate to the office. Communications sent by post by the office to the said address shall be presumed to have been received by the Advocate. It would not be necessary for an Advocate to file fresh Vakalatnama if he has filed the same in the lower court/courts on behalf of respondent/opponent provided he files a note of appearance in the concerned appeal in the High Court. Explanation :-- A separate Vakatnama shall be filed in each of several connected proceedings notwithstanding that the same advocate is retained by the party in all the connected Page 5 of 7 C/LPA/419/2019 ORDER proceedings."
8. Thus, admittedly, at the time of filing of Vakalatnama in May, 2018 in Criminal Revision Application No. 1147 of 2017, Mr. Aditya D. Bhatt, learned advocate was also required to file appearance note in Criminal Misc. Application No. 1309 of 2018 (re-numbered as Criminal Misc. Application No. 1 of 2018). However, that was not done by Mr. Aditya D. Bhatt, learned advocate. In fact, no such appearance note dated 28th August, 2018 was on the original file nor any such appearance note was submitted to the Registry, otherwise, immediately, upon receipt of such appearance note, a tracking number would have been generated by the Registry so as to track the same.
9. Had there been an opportunity given to explain to the concerned department of the High Court, namely, Registrar (Judicial), it would have left no room for any doubt for passing such order and direction.
10. Be that as it may, we find that the order and direction under challenge is uncalled for and in clear contravention of law laid down by Division Bench of this Court in Suo Motu Vs. S.J. Gaekwad, Registrar, Gujarat High Court (supra). Accordingly, Page 6 of 7 C/LPA/419/2019 ORDER the order impugned, passed by the learned single Judge deserves to be quashed and set aside.
11. For the above reasons, this appeal is allowed. The directions contained in the order dated 30.1.2019 passed by learned single Judge in Criminal Misc. Application No. 1 of 2018 in Criminal Revision Application No. 1147 of 2017 are hereby quashed and set aside. Consequently, connected civil application for stay does not survive and the same stands disposed of.
12. The above order shall have no bearing on the merits of the subject-matter pending before the learned single Judge. Registry to place the matter before the learned single Judge as per the Roster.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) A.M. PIRZADA Page 7 of 7