RATANLAL NAHATA AND Vs. NANDITA BOSE

JUDGEMENT

(1.) .I have the privilege to go through the separate but concurring judgment of S. K. Sen, J. and S. B. Sinha, J.

(2.) It is indisputable that procedural laws are meant to advance justice and the same must apply to Order 47, Rule 5 of the Code of Civil Procedure. A Superior Court apart from its power under Section 229 read with Section 4 of the Code of Civil Procedure coupled with its power under Letters Patent as a matter of general policy may frame its procedural rules. This Court has framed Original Side Rules as well as Appellate Side Rules of procedure for civil cases as well as for petition under Art. 226 of the Constitution of India. In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal, AIR 1998 SC 1079 the Supreme Court has set at rest any controversy as respects power of the Chief Justice to constitute a bench of two or more Judges to decide a case or any question of law formulated by a bench hearing a case. It is pointed out by the Supreme Court that the Chief Justice enjoys special status not only under Constitution but also under Rules of Court made in exercise of the power conferred by Art. 225 of the Constitution. The Chief Justice can alone determine jurisdiction of various Judges of the Court. He alone can assign work to a Judge sitting alone and to the Judges sitting in the Division Bench or to Judges sitting in the Full Bench. He alone has the jurisdiction to decide which case will be heard by two or more Judges. The conferment of this power exclusively on the Chief Justice is necessary so that various Courts comprising of the Judges sitting alone or in Division Bench etc. work in a co-ordinated manner and the jurisdiction of one Court is not overlapped by other Court. If the Judges were free to choose their jurisdiction or any choice was given to them to do whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial functioning of the Court would cease by generation of internal strife on account of hankering for a particular jurisdiction or a particular case. The nucleus for proper functioning of the Court is the 'elf' and 'judicial discipline of Judges which is sought to be achieved by Rules of Court by placing in the hands of the Chief Justice full authority and power to distribute work to the Judges and to regulate their jurisdiction and sitting.

(3.) As master of the roster, thus, the Chief Justice is expected to know the implication of a review and reference or any other matter of significance including proper hearing of a case by a Judge or more than one Judges of the Court constituting a Bench. In exceptional cases when there is a chance of injustice to a litigant notwithstanding the procedure under Order 47, Rule 5 of the Civil Procedure Code the review application can be placed before a Judge or a Bench of more than one Judge as constituted by the Chief Justice but it would be in confirmity with the procedure and judicial discipline that-1. Order 47, Rule 5 of the Code of Civil Procedure although ipso facto has no application in relation to a writ proceeding or a proceeding on the Original Side of this Court as well as in proceedings that arises on the Appellate Side, the procedure in principle in Order 47, Rule 5 should be followed and-2. In a case where merely one of the learned Judges attached to the Bench is available, he may issue rule but the matter on merit must be heard by a Division Bench of two Judges or such number of Judges as the Hon'ble the Chief Justice may constitute and-3. It would be proper, even though the Chief Justice may have unfettered jurisdiction in the matter of constitution of Benches including for a review application that the Judge who is still attached to the Court and was a party to the Judgment under review is associated with the Bench of two or such number of Judges as the Hon'ble the Chief Justice may constitute. reference is answered accordingly.