Bombay High Court
M/S.Lakh Enterprises And Anr vs M/S. Agar Distributors (India) ... on 29 October, 2012
Bench: Anoop V.Mohta
1 9-rpl-74-2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION LODGING NO.74 OF 2012
WITH
NOTICE OF MOTION NO.364 of 2012
IN
WRIT PETITION NO.364 OF 2011
M/s.Lakh Enterprises and anr. ..Petitioners
vs.
M/s. Agar Distributors (India) and ors.
ig ..Respondents
Mr.S.Shamim i/b. Shamim & co. for Petitioners in Review Petition
and original respondents.
Mr.Mayur Khandeparkar with Mr.Ashish Rao i/b. M & M Legal
Ventures for Respondents in Review Petition and original petitioners.
....
CORAM :- ANOOP V. MOHTA, J.
DATE :- 29TH OCTOBER, 2012.
ORAL JUDGMENT:
Heard finally by consent of the parties.
2 The petitioners, original respondent nos.2 and 3, have
filed this Review Petition against order dated 29 th April 2011 passed
in Writ Petition No.364 of 2011 by which, after hearing both the
parties finally, the petition was allowed in terms of prayer clause (a).
The Writ Petition was filed against order dated 16 th July 2010 passed
by the Intellectual Property Appellate Board (for short "the Board")
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under the Trade Marks Act, 1999 (for short "the Act").
3 By this Review Petition dated 15th October 2012 prayer
is made to set aside the judgment. Notice of Motion No.364 of
2012 is also filed along with the Review Petition, as there is a delay
of about 474 days.
The assignment and the Advocate's certificate:
4 It is relevant to note Rule 636 of the Bombay High Court
Original Side Rules, 1980 which reads as under:
"R.636. Application for Writ, etc., under Article
226 of the Constitution.-
(1)(a) Application under Article 226 of the
Constitution other than an Application for a Writ of
Habeus Corpus, in matters arising substantially
within Greater Bombay out of-
... ... ... ... ... ...
may be heard and finally disposed of by a single
Judge to be appointed in this behalf by the Chief
Justice:
Provided when the matter in dispute or relates
to the challenge to the validity of any statute or any
rules or regulation made thereunder and arising
substantially within Greater Bombay shall be heard
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and disposed off by a Division Bench to be appointed
by the Chief Justice.
Explanation. - The expression "orders", appearing in
clauses (i) to (xxxiv) means any order passed by any
Judicial or quasi-Judicial authority empowered to
adjudicate under the abovementioned statute.
(1) (b) All applications under Article 226 other
than those mentioned in Sub-rule (1) (a) above,
shall be heard and disposed of by a Division Bench
to be appointed in this behalf by the Chief Justice.
(2) Every application mentioned in sub-rule (1)(a)
and (1)(b) shall be accompanied by a Certificate of
the Advocate for the Petitioner, certifying that the
application in question arises out of the matters
mentioned in sub-rule (1) or sub-rule (2) and for
placing the same for hearing before a Division Bench
or a Single Judge, as the case may be."
These rules are clear and mandatory. Any petition against the order
passed by the Board under the Act is not provided in sub-rule (1)
(a). Therefore, a Division Bench would hear such writ petition, not a
Single Judge Bench. These High Court Rules of the assignment bind
all.
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5 Based upon Advocate's certificate dated 26th October
2010 the Petition was placed before the Single Judge as per the
assignment. It appears that office raised objection with regard to the
jurisdiction for placing the matter before the Single Judge. A
statement was recorded of the advocate that as the order being
passed by a Judicial Body, therefore, they would satisfy the Court
about the maintainability of the writ petition before the Single
Judge. Both the counsel conceded that such argument on the
maintainability was not made. The matter was listed before the
Single Bench. The petitioner / respondent also, did not raise any
objection about the jurisdiction. The matter proceeded and was
heard finally and the order was passed accordingly. No challenge
was raised on merit before any forum against order dated
29/4/2011 by the petitioners, at the relevant time.
6 Based upon the impugned order further proceedings
were initiated before the Board. An order was passed by the Board
for seeking appropriate clarification from the High Court. Therefore,
being aggrieved by order dated 16 th March 2012, the respondent
filed Writ Petition No.2181 of 2012, again on the basis of same
Advocvate's certificate dated 12th August 2012, however this time it
is certified that the writ petition is maintainable before the Division
bench. The earlier certificate was for listing before the Single Judge.
Any order without assignment is without jurisdiction:
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7 In State of U.P. Vs. Neeraj Chaubey [(2010) 10 SCC
320], the Supreme Court observed as under:
"9. The High Court had taken note of various judgments of
this Court including State of Maharashtra v. Narayan Shamrao
Puranik [(1982) 2 SCC 440] ; Inder Mani v. Matheshwari Prasad
[(1996) 6 SCC 587]; State of Rajasthan v. Prakash Chand
[(1998) 1 SCC 1], R. Rathinam v. State [(2000) 2 SCC 391] and
Jasbir Singh v. State of Punjab [(2006) 8 SCC 294] and various
judgments of High Courts and came to the conclusion that the
Chief Justice is the master of roster. The Chief Justice has full
power, authority and jurisdiction in the matter of allocation of
business of the High Court which flows not only from the
provisions contained in Sub-section (3) of Section 51 of the States
Re-organisation Act, 1956, but inheres in him in the very nature
of things. The Chief Justice enjoys a special status and he alone
can assign work to a Judge sitting alone and to the Judges sitting
in Division Bench or Full Bench. He has jurisdiction to decide
which case will be heard by which Bench. 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 work of the court would
cease by generation of internal strife on account of hankering for
a particular jurisdiction or a particular case. The Court held that a
Judge or a Bench of Judges can assume jurisdiction in a case
pending in the High Court only if the case is allotted to him or
them by the Chief Justice. Strict adherence of this procedure is
essential for maintaining judicial discipline and proper
functioning of the court. No departure from this procedure is
permissible."
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8 Therefore, in view of this and clear provisions with
regard to the assignment of Single Judge by referring to Rule 636(1)
(b), the petitioners moved this Review Petition to set aside the order.
9 The settled position is that any order passed by a single
Judge, without assignment, unless specifically directed, needs to be
treated as without jurisdiction. As per this Rule the matter ought to
have been placed before the Division Bench and not before the
Single Judge though counsel's certificate was otherwise. The fact
remains that both the parties proceeded as if the Single Judge has
jurisdiction and argued the matter finally. The case is made out for
condonation of delay in filing the Review Petition. The delay itself
cannot confirm such order automatically.
Error on face of record
10 In S.Bagirathi Ammal Vs. Palani Roman Catholic
Mission [(2009) 10 SCC 464], the Supreme Court observed as
under:
"12. An error contemplated under the Rule must be
such which is apparent on the face of the record and not
an error which has to be fished out and searched. In
other words, it must be an error of inadvertence. It
should be something more than a mere error and it must
be one which must be manifest on the face of the record.
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When does an error cease to be mere error and becomes
an error apparent on the face of the record depends
upon the materials placed before the Court. If the error is
so apparent that without further investigation or enquiry,
only one conclusion can be drawn in favour of the
appellant, in such circumstances, the review will lie.
Under the guise of review, the parties are not entitled to
re-hearing of the same issue but the issue can be decided
just by a perusal of the records and if it is manifest can
be set at right by reviewing the order."
"26. As held earlier, if the judgment/order is vitiated by
an apparent error or it is a palpable wrong and if the
error is self evident, review is permissible and in this
case the High Court has rightly applied the said
principles as provided under Order 47 Rule 1 C.P.C."
The consent and / or the concession and / or no objection of the
advocate or the parties cannot decide the jurisdiction of the
Court
11 The order so passed thus was without jurisdiction. I see
no reason to go further into this controversy of finding faults with all
the concerned. The Consent and/or no consent, the certificate
and/or wrong certificate, the order is without jurisdiction for want of
assignment and it goes to the root of the matter. Therefore, without
observing anything on merit on this sole ground judgment dated
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29th April 2011 in Writ Petition No.364 of 2011 is recalled. However,
it is made clear that Writ Petition be listed before the concerned
Division Bench for final hearing. All points are kept open. The
consent and / or the concession, and / or no objection by the parties
or their advocate / counsel cannot itself decide the issue of Court's
jurisdiction so also the advocate's wrong certificate.
The office objection about jurisdiction
12 It is necessary to observe, so far as office is concerned,
that whenever such issue of jurisdiction and / or assignment, if
recorded / endorsed, it should be promptly placed on the daily board
at appropriate place, at the relevant time so that all concerned will
be in a position to deal with and / or refer to and decide the same.
Result
13 In view of the above, considering the facts and
circumstances of the case, (a) Notice of Motion No.364 of 2012 is
allowed in terms of prayer clauses (a) and (b). (b) The
Judgment/Order dated 29/4/2011 is recalled (c) Review Petition is
allowed. (d) The writ petition be placed before appropriate
Division Bench. (e) No order as to costs.
( ANOOP V. MOHTA, J. )
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