MANUBHAI PARAGJI VASHI Vs. BAR COUNCIL OF MAHARASHTRA

JUDGEMENT

(1.) THE matter has been placed before me pursuant to the order made by the Hon'ble Chief Justice. These petitions were decided by the Division bench consisting of Hon'ble Shri justice F. I. Rebello and Hon'ble Shri Justice anoop V. Mohta. There was difference of opinion among the two learned Judges and therefore the matter has been referred to me by the Hon'ble Chief Justice. Learned counsel appearing for the Bar Council of maharashtra and Goa invited my attention to Clause 36 of the Letters patent of the bombay High Court. Clause 36 of the Letters Patent reads as under:

(2.) IT is pointed out that in case of difference of opinion among two Judges who are constituting the Division Bench Clause 36 contemplates that the Division Bench has to state the ground or grounds upon which they differ and then the case has to be heard by a third Judge. It is submitted that in the present case the learned Judges sitting in the Division Bench have not stated the point or ground on which they are not able to concur. The Judgment of the Supreme Court in the case of (Reliance industries Ltd. Vs. Pravinbhai Jasbhai Patel and Ors.), reported in (1997)7 Supreme court Cases 300 : A. I. R. 1997 S. C. 3892 : j. T. 1997 (7) S. C. 618 : 1997 (5) SCALE 633 : 1997 (8) Supreme 52 was also pointed out.

(3.) IN the absence of any provision to the contrary in the Original Side Rules there can be no doubt that Clause 36 of the Letters patent will apply. The Supreme Court has considered the provisions of Clause 36 of the Letters Patent. In that case there was a difference of opinion among the members of the Division Bench to whom the Review petition was assigned for decision. The supreme Court has considered that question in paragraph 14 of its judgement in the case of Reliance Industries Ltd. which is reproduced below :-Para 14 : Consequently it is not possible to agree with the conclusion to which the High court reached that because the two learned judges of the High Court deciding the review petition did not agree and gave contradictory opinions regarding the merits of the review petition the decision of the review petition had to be as laid down by order 47, Rule 6 CPC. Consequently, the said decision of the High Court dismissing the Miscellaneous Civil Application No. 1939 of 1995, rendered on 25-10-1996 cannot be sustained and will have to be set aside. As a logical corollary to this decision of ours Miscellaneous Civil Application No. 1939 of 1995 is directed to be restored to the file of the High Court of Gujarat with a direction that in view of the conflicting opinion expressed by the Bench of the High court consisting of H. L. Gokhale and M. S. Shah, JJ. , who earlier heard the review petition, the questions arising for decision in the review proceedings on which the aforesaid two learned Judges either differed in their opinions or did not concur will have to be referred for opinion of the third learned judge of the High Court as per Clause 36 of the Letters Patent. For that purpose the remanded review petition will have to be placed before the Bench of H. L. Gokhale and M. S. Shah, JJ. to enable them to state the points of their difference as per Clause 36 of the letters Patent for being placed for consideration of the third learned Judge. The hon'ble Chief Justice of the High Court is requested to assign the review petition to the appropriate Bench and thereafter to the third learned Single Judge for deciding these remanded proceedings as per Cause 36 of the letters Patent at the earliest. It is obvious that the third learned Judge will be entitied to consider all the aforesaid questions arising out of the difference of opinion between the two learned Judges, whether they are questions of fact or questions of law, and the review petition ultimately will be decided in the light of the decision of the third learned judge, as per the procedure laid down by clause 36 of the Letters Patent. It is obvious that if the ultimate decision in the review proceedings, as remanded as per this order of ours, goes against the appellant it will be open to the appellant to challenge the said final decision in accordance with law. It is clear from the observation of the supreme Court in paragraph 14 of the judgment quoted above that in terms of Clause 36 of the Letters Patent the course of action required to be adopted is that when the two learned Judges of the Division bench are unable to concur and are not in a position to make an agreed order they have to state the point on which they are not able to agree and it is that point which is referred to the third Judge for decision. In my opinion as the two learned Judges who were forming the Division Bench in the present case have not indicated the point on which there is difference of opinion, in view of the provision of Clause 36 referred to above and judgement of the supreme Court in the case of Reliance industries Ltd. , the Hon'ble Chief Justice will have to direct the office to place the matter before the same Division Bench so that they could make an order to comply with the provisions of Clause 36 of the Letters Patent. The office is therefore, directed to place the matter before the Hon'ble Chief Justice and secure his order in accordance with law. Matter before Hon'ble Chief Justice.