SUO MOTU Vs. REGISTRAR

JUDGEMENT

(1.) The learned Single Judge has referred following two issues for consideration of the Division Bench :-

(2.) The Reference arises in the context of following facts : Special Civil Application No. 11136 of 2000 was placed before the learned Single Judge of this Court for admission hearing and the Court had issued notices to the respondents on 20/10/2000 making them returnable on 20/11/2000. The respondent no.1 has entered its appearance through the learned Government Pleader, but no appearance at the relevant time was entered by the respondent no.2. Mr. B.S.Patel, learned advocate appearing for the petitioner had stated at the Bar that the respondent no.2 was served directly by his clerk and the petition was ripe for hearing. On inquiry being made by the learned Single Judge, Mr. B.S.Patel, learned advocate for the petitioner had stated that the Court had not permitted direct service to the respondents, but he had applied to the Registrar for such permission and as the Registrar had, under the powers conferred on him under Rule-7 of the Gujarat High Court Rules, 1993 ("the Rules" for short), granted such permission, the respondent no.2 was served directly by his clerk. Thereupon, the learned Single Judge had expressed the opinion that two important questions relating to service of Notice/Rule Nisi ordered to be issued by the Court were arising for consideration of the Court : (i) Whether, the Registrar has power to permit the petitioner/appellant/applicant to effect direct service on the respondent/opponent, and (ii) when a petitioner/appellant/applicant has been permitted to effect direct service, can the service be effected by the clerk of the advocate. Mr. B.S.Patel, learned counsel for the petitioner had submitted that Rule-7 of the Rules empowers the Registrar, inter-alia, to comply with all the requirements of the law and the Rules; whereas Rule-12(e) of the Rules empowers the Registrar to permit service of notice or Rule Nisi directly and, therefore, permission granted by the Registrar to serve the respondent no.2 directly should not be treated as illegal. The learned Single Judge referred to Rules 7, 12(e), 13 and 181 of the Rules as well as the provisions of Order-V Rule-9, Rule-17, Rule 18, Rule 19-A and Rule-20, and concluded that the only recognised modes of service are; (1) personal service by an officer of the court, (2) service by post, (3) service by affixing, and (4) the substituted service. In view of the said conclusion, the learned Single Judge has expressed an opinion that the personal service by a litigant or a clerk of the advocate or any person who is not an officer of the Court, is not a recognised mode of service. Further, the learned Single Judge on interpretation of clause (e) of Rule-12 of the Rules has expressed the opinion that the Registrar is not empowered to order direct service and the Court alone can permit the direct service. The decision rendered by the Division Bench of this Court in SUO MOTU v. A.N.Patel, 1999(1) GLR page 8 was brought to the notice of the learned Single Judge to highlight the point that the direct service was a recognised mode of service, but the learned Single Judge was of the opinion that the Division Bench had no occasion to examine the question, whether the direct service is a recognised mode of service and whether the Registrar, Gujarat High Court is empowered to permit direct service and has opined that the propriety demands that the issues referred to earlier should be referred to Division Bench for its consideration. Under the circumstances, by order dated 11/01/2001/January 20, 2001, the learned Single Judge has made reference to the Division Bench to decide the above mentioned two issues. On Reference being made, the same has been registered by the office as Misc. Civil Application No. 201 of 2001.

(3.) The Reference was placed for preliminary hearing before the Court on 20/07/2001 and we had issued notice to the Registrar, Gujarat High Court making it returnable on 30/07/2001. We had also requested the learned Advocate General, Gujarat State and the learned President, Gujarat High Court Advocates' Association, to assist the Court in the matter. Again, the matter was placed for hearing before the Court on 6/08/2001 and the learned President, Gujarat High Court Advocates' Association had expressed the view that the decision which may be rendered by the Division Bench of this Court is likely to affect the learned advocates practising in the Court and, therefore, by an order dated August 6, 2001, we had directed the office to notify to the learned Advocates practising in the Court that any member of the Gujarat High Court Advocates' Association was welcome to participate in the proceedings before the Court. Accordingly, Shri S.B.Vakil, learned Senior Advocate representing Gujarat High Court Advocates' Association, whereas Shri S.N.Shelat, learned Advocate General assisted by Mr. A.D.Oza, learned Government Pleader and Mr. Paresh Upadyaya representing the Registrar, Gujarat High Court, have appeared in the matter and addressed the Court.