Bombay High Court
Prem Siddha Co-Op Housing Society ... vs The High Power Committee-Ii And 8 ... on 23 August, 2016
Bench: Naresh H. Patil
Chittewan 1/20 WP (L) No.3016-14.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.3016 OF 2014
Prem Siddha Co-op. Housing
Society And Anr. .. Petitioners
Versus
The High Power Committee-II
And Others .. Respondents
WITH
WRIT PETITION (L) NO.672 OF 2015
WITH
CONTEMPT PETITION (L) NO.32 OF 2015
ig IN
WRIT PETITION (L) NO.672 OF 2015
Shivkripa Builders And Developers .. Petitioner
Versus
The Slum Rehabilitation Authority
And Others .. Respondents
WITH
WRIT PETITION NO.505 OF 2015
M/s Om Omega Investment And Properties .. Petitioner
Versus
The High Power Committee-II
And Others .. Respondents
WITH
WRIT PETITION NO.1205 OF 2015
Indira SRA Co-operative
Housing Society .. Petitioner
Versus
The High Power Committee-II
And Others .. Respondents
::: Uploaded on - 24/08/2016 ::: Downloaded on - 25/08/2016 00:29:19 :::
Chittewan 2/20 WP (L) No.3016-14.doc
WITH
WRIT PETITION NO.2424 OF 2015
M/s Om Omega Investment And Properties .. Petitioner
Versus
The Slum Rehabilitation Authority
And Others .. Respondents
WITH
WRIT PETITION NO.2595 OF 2015
Indira SRA Co-operative Housing Society ... Petitioner
Versus
The Slum Rehabilitation Authority
And Others ... Respondents
.....
Mr. Sameer Vaidya for the Petitioners in WPL/3016/2014 And for
Respondent Nos.7 and 10 in WP/505/2015 and WP/1205/2015.
Mr. Nitin Thakkar, Senior Counsel a/w Dr. Milind Sathe a/w Mr. Bhushan
Deshmukh a/w Mr. Ravi Gadagkar for Bombay Bar Association.
Mr. L.T. Satelkar a/w Mr. A.H. Palekar, Mr. V.V. Purwant for Advocates
Association of Western India.
Mr. Arun Panickar for the Petitioners in WP/505/2015 in WP/2424/2015
And for Respondent No.9 in WP/1205/2015 And WP/2595/2015.
Mr. Gautam Ankhad a/w Mr. Monil Punjabi i/b Mr. Daval Vassonji for
Respondent No.8.
Ms. Shreya Ramesh a/w Ms. Bhanu Garg i/b Bharucha & Partners for
Petitioners in WP/1205/2015 And WP/2595/2015 And for Respondent
No.9 in WP/505/2015 & WP/2424/2015.
Mr. Milind More, Addl. G.P. for Respondent No.2 in WPL/3016/2014.
Ms. Harsha Shah, AGP for State in WPL/672/2015.
Mr. Amit Shastri, AGP for Respondent No.2 in WP/2424/2015.
.....
CORAM : NARESH H. PATIL,
S.C. GUPTE &
A.K. MENON, JJ.
RESERVED FOR ORDER : 05 MAY 2016
PRONOUNCED ON : 23 AUGUST 2016
Chittewan 3/20 WP (L) No.3016-14.doc
JUDGEMENT : (Per S.C. Gupte, J) :
. The question raised in this reference is : Whether the Prothonotary
& Senior Master has power to set aside an order of dismissal passed by him
under Rule 986 of the Bombay High Court (Original Side) Rules, 1980 ?
2 Writ Petition (L) Nos.3016 of 2014 and 672 of 2014 were dismissed
by the Prothonotary & Senior Master of this Court under Rule 986 of the
Bombay High Court (Original Side) Rules, 1980 for non-removal of office
objections. On oral requests, the Prothonotary set aside the orders of
dismissal and restored the petitions to the file. When the petitions came up
before the Court, a Division Bench (V.M. Kanade & Dr. Shalini Phansalkar-
Joshi, JJ.) was of the view that there is a conflict between two Division
Bench decisions of this Court on the question as to whether the
Prothonotary & Senior Master has the power to restore a suit or a writ
petition dismissed by him under Rule 986. The learned Judges, in the
premises, directed the petitions to be placed before the Hon'ble the Chief
Justice with a request to refer this issue to a larger Bench under Rule 28.
Upon that request being granted, this reference has been placed before us.
3 Since the matter generally concerns the Bar, we caused a notice to be
given to the associations of both sides, namely, Bombay Bar Association and
the Advocates Association of Western India. We have heard Counsel
appearing for parties in the petitions before us as well as Counsel for both
associations. Learned Counsel appearing for the petitioners as well as for
both associations submitted that the Prothonotary has the requisite power,
whilst Mr. Ankhad for the Respondents submitted that there is no such
Chittewan 4/20 WP (L) No.3016-14.doc
power in the Prothonotary and the matter must be brought before the
Chamber Judge for recall or setting aside of a dismissal order.
4 First of all, we may note the historical perspective in which, and the
provisions of law under which, the Prothonotary & Senior Master has been
appointed an officer of this Court and powers have been conferred on him
so as to assist the Court in administration of justice. This High Court was
constituted by the Letters Patent issued on 28 December 1865. The
appointment of its officers was governed by Clause 8 of the Letters Patent,
under which the Chief Justice of the Court was authorized and empowered
to appoint, from time to time and as occasion may require, so many and
such clerks and other ministerial officers as shall be found necessary "for
the administration of justice, and the due execution of all the powers and
authorities granted and committed.... by....Letters Patent." The appointment
of the Prothonotary has been under this power. Let us now consider the
requirements of this Court for administration of justice. The High Court
has both ordinary original civil jurisdiction and extraordinary original civil
jurisdiction, respectively under Clauses 12 and 13 of the Letters Patent, to
receive, try and determine original suits of every description. The
condition for such jurisdiction under Clause 12 is that in the case of suits
for land or immovable property, such land or property shall be situated or
in all other cases, the cause of action, either wholly, or in case the leave of
the Court is obtained, in part, shall have arisen or the defendant shall be
dwelling or carrying on business, within the local limits of its ordinary
original jurisdiction. Under Clause 13, the Court has the power to remove,
and to try and determine, any suit within the jurisdiction of any Court,
which is subject to its superintendence. Besides, this Court has jurisdiction,
Chittewan 5/20 WP (L) No.3016-14.doc
under Articles 226 and 227 of the Constitution of India, for issuance of
writs, orders and directions. The suits referred to above as well as petitions
for writs, orders or directions where the cause of action arises within the
local limits of its original civil jurisdiction, are tried and decided on the
original side of this Court. For the purpose of regulating all civil
proceedings brought before it, the High Court is empowered, under Clause
37 of the Letters Patent, from time to time to make rules and orders
provided that the Court has to be guided in making such rules and orders
as far as possible by the provisions of the Code of Civil Procedure. The
Code of Civil Procedure, in turn, provides (Section 122) for the power of
the High Courts (not being Courts of a Judicial Commissioner) to make
rules regulating their own procedure and even to annul, alter or add to all
or any of the Rules of the First Schedule of the Code. Even the High Courts
which are Courts of a Judicial Commissioner are empowered to make rules
(Section 128) so as to provide matters including procedure in suits and also
"delegation to any Registrar, Prothonotary or Master or other official of the
Court of any judicial, quasi-judicial and non-judicial duties." Our High Court
has made rules inter alia for regulating suits and proceedings arising in its
ordinary and extraordinary original jurisdiction, called the Bombay High
Court (Original Side) Rules, 1980 ("OS Rules"), which inter alia provide
for the powers and functions of the Prothonotary.
5 In this Reference, we are concerned with the subject of admission
and rejection of plaints and petitions on the original side of this Court, and
the powers of the Prothonotary & Senior Master as the officer of the Court
in connection therewith. For that purpose, it is necessary, at the outset, to
understand the scheme of the OS Rules for admission and rejection of
Chittewan 6/20 WP (L) No.3016-14.doc
plaints and petitions and other miscellaneous applications required to be
made in the course of a trial, which are procedural in nature and many of
which may be more or less formal or uncontested matters. Any proceeding
initiated on the original side starts with the presentation of a plaint or a
petition or an application. Under Rule 45 of the OS Rules, a plaint has to
be lodged with the officer attending on the Judge in Chambers ( in cases
where leave of the Court is to be applied) or with such officer as the
Prothonotary & Senior Master may direct (in all other cases). Every
petition or application has to be likewise presented to, and scrutinized by,
the Prothonotary or other designated officer. The very first business that
the Court has to undertake is, thus, admission and rejection of plaints (as
also petitions). This is one of the chamber matters, for hearing and
disposing of which a Judge is nominated by the Chief Justice, who is
known as the 'Judge in Chambers'. Apart from admission and rejection of
plaints, various other miscellaneous applications arising in the course of
trials in suits, such as appointment of guardians-ad-litem of minors,
applications for substituted service of a writ of summons, amendment of
the plaint or subsequent proceedings, bringing legal heirs of deceased
parties to suits on record, etc., are to be disposed of by the Judge in
Chambers. The matters which may be so disposed of are listed in Rule 121
of the OS Rules. Many of these matters, notably with the exception of
contested matters such as (i) amendments of plaints and subsequent
proceedings other than formal amendments, (ii) applications for judgment
in summary suits, (iii) summary suits in which leave to defend has not
been obtained, (iv) applications in execution, etc., are delegated to the
Prothonotary & Senior Master, under Rule 131 of the OS Rules. The matter
of 'admission and rejection of plaints' is one such delegated matter. Though
Chittewan 7/20 WP (L) No.3016-14.doc
any rejection of a plaint or a petition may be said to result generally into
dismissal of the suit or the petition, as the case may be, and is ordinarily
referred to as such, it is really a rejection of a document. Rule 986 of the
OS Rules makes the matter clear. The Rule is quoted below :
Rule 986. Rejection of plaint, memo of appeal, execution
application and applications and petition of original nature
for non-removal of office objections. -
Every plaint, memo of appeal, application for execution and all
other applications and petitions of the original nature, including
the petition by an indigent person, in which the
Plaintiff/Appellant/Applicant/Petitioner does not remove the
office objections within 30 days from the date of lodging the said
documents, shall be placed before the Prothonotary and Senior
Master for directions, who may reject such documents for non-
removal of office objections. Rule 133 of these rules will apply
to such rejection.
Rules 131 and 986, thus, make it clear that the power of admission
or rejection of plaints or petitions thereunder is clearly with the
Prothonotary.
6 That takes us to the next question, namely, what does this power
envisage. Normally, and even lexicologically, a power to admit or reject
would include a power not to admit or reject, or in other words, from a
practical stand-point, to give further time to the party to comply with the
office objections or excuse the delay. In a matter, for example, kept before
the Prothonotary for rejection of plaint or petition for non-removal of office
objections, it is permissible for the Prothonotary to grant further time to the
party for removal of objections. It is equally conceivable that even
Chittewan 8/20 WP (L) No.3016-14.doc
where the Prothonotary passes a self-operating order of rejection of a plaint
or a petition for non-removal of office objections within a specified time
reserved thereunder, that time may be extended by the Prothonotary at any
time before it expires and the rejection takes effect. The Prothonotary has
been almost routinely passing such orders ever since inception, and indeed,
no objection can be taken to it on a matter of principle, for the matter is
still within the seisin of the Prothonotary and there is no effective rejection
as yet at that stage. Now, the question is whether the Prothonotary ceases
to have such power after the rejection comes into effect, that is to say, to
grant further time ex post facto.
Before we go into the judgments delivered by this Court, which may
have a bearing on this issue, we may notice that there should be no
objection to the Prothonotary exercising such power ex post facto as a
matter of principle. After all, all that he does whilst acting under Rule 986
is rejection of a document, namely, a plaint or a petition, as the case may
be, for want of a procedural compliance and if he can exercise such power,
i.e. excuse the delay in such compliance, in the case of a self-operating
order of rejection, though before the order takes effect, there is nothing, in
principle, to deny such power to him after the order takes effect. It is still a
matter as between the party and the Court, and not a lis as yet, and just as
rejection would be a matter of procedure, even condonation of the default
and subequent admission of the document after due compliance would be a
procedural matter. No equity or other right arises in favour of any third
party, particularly the opponent, as a result of the original rejection and
none is lost upon the subsequent recall and admission.
Chittewan 9/20 WP (L) No.3016-14.doc
8 The first judgment having a bearing on the Prothonotary's power in
this behalf is a decision of a learned Single Judge of this Court (S.H.
Kapadia J, as the learned Judge then was) delivered on 27 April 1998 in
the case of Central Bank of India Vs. Rima International 1. That was a
case, where a suit was placed for directions before the Prothonotary under
Rule 157 of the OS Rules read with Rule 131 thereof. (Rule 157 provides
for the power of the Judge in Chambers to issue directions with respect to
various matters, which are pre-trial formalities, such as filing of pleadings,
interrogatories, discovery and inspection, admission and denial of
documents, facts, etc. Under Rule 131, this power is also delegated to the
Prothonotary.) The plaintiffs and their advocates remained absent; the suit
was adjourned for dismissal; and upon their absence even on the adjourned
date, the Prothonotary dismissed the suit. In these facts, the plaintiffs took
out a Notice of Motion before the Court for setting aside the order of
dismissal passed by the Prothonotary. The learned Judge noted, in the first
place, that upon delegation of the power to issue directions, the
Prothonotary has the power dismiss the suit in case the Plaintiffs/advocates
remain absent. In cases where the defendants/advocates remain absent,
the Prothonotary has the power to transfer the matter to the Court for
an ex parte decree. The learned Judge, thereafter, in the light of Rules 87,
131, 133, 157 and 986, held that in cases where after the suit is so
dismissed or transferred to Court for ex parte decree, a praecipe is filed
explaining the absence, the Prothonotary may, on being satisfied as to
sufficient cause, set aside his order. The learned Judge observed as
follows :
1 Nt.of Motion No.1716 of 1996 in Suit No.2308 of 1990
Chittewan 10/20 WP (L) No.3016-14.doc
"Prior to the amendment of the Rules, suits were placed for
Directions before the Court. This power is now vested in the
Prothonotary. In case where the Plaintiffs/Advocates remain
absent, the Prothonotary has power to dismiss the suit.
Similarly, in cases where Defendants/Advocates remain absent,
the Prothonotary has power to transfer the matter to the Court
for ex parte decree. However, in cases where praecipe is filed
after the suit is dismissed or transferred for ex parte decree
explaining sufficient cause for absence at the stage of Directors,
the Prothonotary may, on sufficient cause, set aside his Order
dismissing the suit. The above position is clear under Rules 87,
133, 131, 157 and 986. In large number of matters, parties and
their Advocates do not appear before the Prothonotary for
Directions. In the circumstances, suits are dismissed.
Thereafter, they do not move the Prothonotary showing good
cause for restoration of the matter but they prefer Notices of
Motion. The result is delay and multiplicity of proceedings. One
more fact may be noted that on account of the Party/their
Advocates remaining absent before the Prothonotary, on many
occasions important objections remain outstanding and
uncleared. It is not for this Court to go into the objections like
non-service of writ of summons within six months as provided
under Rule 87. Under Rule 87, if the Plaintiffs/their Advocates
do not serve the writ of summons within six months then they
shall apply for extended returnable date showing good cause to
the Prothonotary."
Going by this judgement, if the Prothonotary has the power to set
aside an order of dismissal passed for default in appearance at the stage of
'directions', there is indeed no reason why he should have no power to
allow the plaintiff to remove office objections and thereafter to admit the
plaint, having first rejected it under Rule 986.
9 A difficulty arose later, however, when another learned Single Judge,
A.M. Khanwilkar, J. as the learned Judge then was, in the case of Bank of
Chittewan 11/20 WP (L) No.3016-14.doc
Baroda Vs. Deepak Raghuvir Wagle2, held that the Prothonotary has no
power to dismiss a suit for default when it is placed before him for
'directions'. The learned Judge held that the Prothonotary merely had the
power to reject a plaint under Rule 986 for non-removal of office objections
and not to dismiss the suit for default of advocates or parties to appear
before him. The learned Judge, in the premises, restored the suit.
10 The seeming conflict between the views of the two learned Judges
noted above led to a reference before a Division Bench in Bank of Baroda
Vs. Deepak Raghuvir Wagle3 upon an office note of the Prothonotary,
which was treated as a review petition in the suit restored by Khanwilkar J.
In its judgment, the Division Bench (Per D.K. Deshmukh and J.H. Bhatia
JJ.) disagreed with the view taken by Khanwilkar J. and upheld the view of
Kapadia J. It held that possession of such power, i.e. power to dismiss a
suit for default, is necessary, so that the Prothonotary can effectively
exercise the power expressly conferred on him by the Rules, i.e. power to
reject the plaint for non-removal of office objections (Rule 986) or power
to dismiss a suit for non-service of summons within a reasonable time (Rule
87). The Division Bench relied on the following observations of the
Supreme Court in the case of Jamal Uddin Ahmad Vs. Abu Saleh
Najmuddin4 on enabling powers and ancillary powers flowing therefrom :
"11. "For a long time courts have, without objection from
Parliament, supplemented procedure laid down in legislation
where they have found that to be necessary for this purpose.
But before this unusual kind of power is exercised it must be
clear that the statutory procedure is insufficient to achieve
2 2007(3) Bom.C.R. 42
3 2008(2) Mh.L.J. 381
4 (2003) 4 S.C.Cases 257
Chittewan 12/20 WP (L) No.3016-14.doc
justice and that to require additional steps would not frustrate
the apparent purpose of the legislation",said Lord Reid in
Wiseman Vs. Borneman, (1971) AC 197, 308. "If a statute is
passed for the purpose of enabling something to be done, but
omits to mention in terms some detail which is of great
importance (if not actually essential) to the proper and effectual
performance of the work which the statute has in contemplation,
the courts are at liberty to infer that the statute by implication
empowers that detail to be carried out." (Craies on Statute Law,
Seventh Edition. p. 111.) Cui jurisdictio data est, ea quoque
concessa esse videnture, sine quibus jurisdictio explicari non potuit
--- "Where an Act confers a jurisdiction, it impliedly also grants
the power of doing all such acts, or employing such means, as
are essentially necessary to its execution." (See Maxwell on
Interpretation of Statutes, Eleventh Edition, p.350). Referring to
Maxwell (ibid), Sutherland's Statutory Construction and
Domat's Civil Law, the law was thus stated, as a "firmly
established rule", by this Court in Income-tax Officer, Cannanore
Vs. M.K. Mohammed Kunhi, (1969) 2 SCR 65, that an express
grant of statutory power carries with it by necessary implication
the authority to use all reasonable means to make such grant
effective. In Chief Executive Officer & Vice-chairman, Gujarat
Maritime Board V. Haji Daud Haji Horun Abu and ors., (1996) 11
SCC 23, this Court held that the conferal of incidental and
ancillary powers necessarily flows from the conferal of the
substantive power. "It is well settled that where a substantive
power is conferred upon a Court or Tribunal, all incidental and
ancillary powers necessary for an effective exercise of the
substantive power have to be inferred".
Relying on this statement of law, the Division Bench held that the
Prothonotary has the power to reject the plaint or dismiss the suit for
failure of the party to appear before him, holding as follows :
"By the Rules framed by it, the High Court has conferred
certain powers on the Prothonotary to reduce, to some extent,
the burden on the Court's board. Power to see that all the
objections to the plaint are removed by the plaintiff is
conferred on the Prothonotary, because, the Court does not
Chittewan 13/20 WP (L) No.3016-14.doc
want to spend its time on getting the office objections removed
and in the opinion of the Court, the Prothonotary is competent
to do the job. The intention of the Court as a Rule making
authority, while conferring above referred power on the
Prothonotary was that when the plaint comes before the Court
for hearing all the office objections raised to the plaint should
have been removed, so that the Court can begin the hearing,
without it being required to see that the plaint is in order and
has been filed in compliance with the Rules. The power
conferred on the Prothonotary to see that all objections that
are raised to the plaint are removed, to see that the writ of
summons on the party is duly served within a reasonable time,
cannot be effectively exercised by the Prothonotary without the
Prothonotary getting power to reject the plaint or dismiss the
suit for failure of the plaintiff to appear before the
Prothonotary to satisfy the Prothonotary that he has removed
all the objections or that the writ of summonses have been
served on all the defendants."
11 Whilst explaining the judgment in Bank of Baroda's case, another
Division Bench of our Court in Lawrence Fernandes Vs. State of
Maharashtra5 (Per S.C. Dharmadhikari & B.P. Colabawalla JJ.) held that
the former case shows that the Prothonotary is empowered to direct
dismissal of a Plaint, Memo of Appeal, Execution Application, etc. for non-
removal of office objections, after such matters are placed before him, but
does not support his power to order restoration routinely of the matters so
dismissed. (The learned Judges, as noted above, qualify their statement as
to the Prothonotary's power by the word "routinely", suggesting possibly
that in an appropriate case, if a case of restoration is made out, the
Prothonotary can order restoration.)
12 The learned Judges in Lawrence Fernandes are, in our opinion, and
with utmost respect, right in making the observation that the Division
5 W.P. (L) No.2396 of 2014 decided on 9 September, 2015.
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Bench order in Bank of Baroda in itself does not affirm the power of the
Prothonotary to order restoration. The case of Bank of Baroda concerned
itself with the Prothonotary's power to dismiss a suit or a petition for
default of appearance, when the matter is placed before him either under
Rule 986 or Rule 87. The Division Bench (D.K. Deshmukh & J.H. Bharia,
JJ.) in Bank of Baroda had no occasion to consider, and has indeed not
considered, the further question, namely, once having dismissed the suit or
the Petition under either of the Rules, does he have the power to restore
the same. To that extent, one can even say that there is no real conflict
between the decisions of the two Division Benches.
Yet, the question of the Prothonotary's power to restore is not
adequately and fully answered. The view of S.H. Kapadia J. (as the
learned Judge then was) was not just that the Prothonotary had the power
to dismiss the suit for default of appearance, but that he had the power to
restore the dismissed suit upon cause being shown. In fact, the real
question considered by the learned Judge was about the latter power,
namely, the power to restore. (The power to dismiss does not appear to
have been even questioned in that case, but rather taken for granted.) The
learned Judge acknowledged the power to restore upon a reading of Rules
87, 131, 133, 157 and 986 of the OS Rules. That was in 1998 and the
judgment has held the field for eighteen years that followed. Almost every
restoration application has been made all these years before the
Prothonotary.
14 Though the Division Bench in Lawrence Fernandes considered
whether or not the existence of the Prothonotary's power to restore was
Chittewan 15/20 WP (L) No.3016-14.doc
supported by the judgment of the earlier Division Bench in Bank of Baroda
(and held that it was not supported), it did not, in terms, consider the
correct position in law on the power itself, on the basis of the OS Rules
considered by Kapadia J. In fact, the judgment of Kapadia J. was not
considered at all by the Division Bench in Lawrence Fernandes. Secondly,
the Division Bench did not come to any categorical conclusion that the
Prothonotary can in no circumstances exercise such power. What it said
was that there is no power "to order restoration by the above process
routinely." The Division Bench really found fault with the manner in
which orders were passed by the Prothonotary. In its own words, the suits,
petitions, etc. "are perfunctorily dismissed or restored by the Prothonotary &
Senior Master." And as a result, what it finally recommends is the
following corrective measure :
"It is time that we take serious note of above acts of the
Prothonotary & Senior Master and take corrective steps. One of
the corrective measures would be to invest all judicial powers,
even in Original Side matters, in the Registrar (Judicial) or
appoint a senior Judicial Officer as Prothonontary and Senior
Master and invest in him so also confer upon him the requisite
powers. At the end of all this, all concerned ought to realise that
a Court of law is meant for the litigants and should protect the
interest of all litigants at any cost and which would include
taking note of serious inaction, lapses or acts of omission and
commission of our own officers."
15 We are of the view, in the premises, that the Division Bench in
Lawrence Fernandes does not overrule the judgement of Kapadia J. in
Rima International. The judgement of Kapadia J., which has held the
field for the last many years, contains a proper and reasonable view on the
power of the Prothonotary to restore a suit dismissed by him earlier. As we
Chittewan 16/20 WP (L) No.3016-14.doc
have noted above, the position not only does not admit of any doubt on
principle, but accords with the law laid down by the Supreme Court in
Jamal Uddin Ahmed's case (supra). The dictum in Maxwell on
Interpretation of Statutes, referred to in this behalf by the Supreme Court,
puts it succinctly in the following words :
"Where an Act confers a jurisdiction, it impliedly also grants the
power of doing all such acts, or employing such means, as are
essentially necessary to its execution."
The OS Rules confer the power to admit or reject a plaint on the
Prothonotary. This power not only includes the power to grant time, but to
admit a once rejected plaint after condoning the default. Such power can
only be said to be an ancillary or incidental power "necessary to its
execution".
16 Even otherwise, the function discharged through the exercise of this
power is administrative or ministerial in nature and it would be a better
approach to leave that to an officer of the Court rather than burden the
Court with the task of discharging such function. As we have noted above,
no principle or consideration of propriety, logic or necessity requires the
same to be performed only by the Court. The following observations of the
Supreme Court are, in our opinion, apposite to note in this behalf :
"The functions discharged by a High Court can be divided
broadly into judicial and administrative functions. The judicial
functions are to be discharged essentially by the Judges as per
the Rules of the Court and cannot be delegated. However,
administrative functions need not necessarily be discharged by
the Judges by themselves, whether individually or collectively or
in a group or two or more, and may be delegated or entrusted
Chittewan 17/20 WP (L) No.3016-14.doc
by authorization to subordinates unless there be some rule of
law restraining such delegation or authorization. Every High
Court consists of some administrative and ministerial staff which
is as much a part of the High Court as an institution and is
meant to be entrusted with the responsibility of discharging
administrative and ministerial functions. There can be
"delegation" as also there can be "authorization" in favour of the
Registry and the officials therein by empowering or entrusting
them with authority or by permitting a few things to be done by
them for and on behalf of the Court so as to aid the Judges in
discharge of their judicial functioning. Authorization may take
the form of formal conferral or sanction or may be by way of
approval or countenance. Such delegation or authorization is
not a matter of mere convenience but necessity at times. The
Judges are already overburdened with the task of performing
judicial functions and the constraints on their time and energy
are so demanding that it is in public interest to allow them to
devote time and energy as much as possible in discharging their
juridical functions, relieving them of the need for diverting their
limited resources of time and energy to such administrative or
ministerial functions, which, on any principle of propriety, logic
or necessity are not required necessarily to be performed by the
Judges. Receiving a cause or a document and making it
presentable to a Judge for the Purpose of hearing or trial and
many a functions post-decision, which functions are
administrative and ministerial in nature, can be and are
generally entrusted or made over to be discharged by the staff of
the High Court, often by making a provision in the Rules or
under the orders of the Chief Justice or by issuing practice
directions, and at times, in the absence of rules, by sheer
practice. The practice gathers the strength of law and the older
the practice the greater is the strength. The Judges rarely
receive personally any document required to be presented to the
Court. Plaints, petitions, memoranda or other documents
required to be presented to the Court are invariably received by
the administrative or ministerial staff, who would also carry out
a preliminary scrutiny of such documents presentable to the
Judge, so that the valuable time of the Judge is not wasted over
such matter as do not need to be dealt with personally by the
Judge."
Chittewan 18/20 WP (L) No.3016-14.doc
17 In keeping with the observations of the Supreme Court, even
otherwise, as a matter of practice, the Prothonotary's power to restore suits
earlier dismissed by him either on default of appearance or for non-
removal of office objections has been long entrenched and has gathered
"the strength of law" and there is no reason, as we have explained above,
to disturb the same now.
18 Yet another important consideration rules in favour of the
affirmation of such power. Every matter placed before the Prothonotary
can always be brought before the Judge under Rule 133 of the OS Rules,
which is quoted below :
Rule 133. Adjournment of matter to Judge- Any party desiring to
have any question decided by Prothonotary and Senior Master,
whether disputed or not, adjourned to a Judge, may apply to the
Prothonotary and Senior Master for such adjournment within
four days from the passing of the order complained of. If the
application is within time, the Prothonotary and Senior Master
shall adjourn the matter and put it on the board of the Judge in
Chambers. If the party makes the application after the said four
days, the Prothonotary and Senior Master may adjourn the
matter to the Judge in Chambers if he is satisfied that the party
had sufficient cause for not making the application in time.
Not only can this be done at the instance of a party, but even the
Prothonotary himself can do so under Rule 131, which delegates the
power to have the question decided, in the first place, to him. Rule 131 has
the following proviso :
Provided that where any matter appears to the Prothonotary and
Senior Master or the Additional Prothonotary and Senior Master
proper for the decision of a Judge, the Prothonotary and Senior
Master or the Additional Prothonotary And Senior Master may
Chittewan 19/20 WP (L) No.3016-14.doc
refer the same to the Judge in Chambers, and the Judge may
either dispose of the matter or refer the same back to the
Prothonotary and Senior Master or the Additional Prothonotary
and Senior Master with such directions as he may thinks fit:
The net result of the provisions quoted above is that in a matter
which admits of any doubt as to whether or not the order of restoration
applied for should be passed in a given case, the Prothonotary himself
before passing the order, or an aggrieved party after passing of the same,
may bring up the matter before the Judge in Chambers and have the same
decided. The Judge in Chambers, in other words, whilst being spared of an
administrative or ministerial exercise, may yet take it up if there is any
doubt or contest, giving the aggrieved parties an adequate remedy.
19 The upshot of the above discussion is that wherever a plaint or other
document or petition is rejected by the Prothonotary under Rule 986 or a
suit or a petition or other proceeding is dismissed under Rule 87 or for
default of appearance, the Prothonotary has the power to set aside his own
order and admit the document or restore the proceeding, as the case may
be. Needless to add that such power is subject to Rule 133 and also the
proviso to Rule 131 of the Bombay High Court (Original Side) Rules, 1980.
20 We answer the Reference accordingly.
21 Before we conclude, we must record our appreciation for the
valuable assistance given to us by Counsel for the parties as also Counsel
for both associations. We may also add a note that we are in full
agreement with the observations made by the Division Bench (S.C.
Chittewan 20/20 WP (L) No.3016-14.doc
Dharmadhikari and B.P. Colabawalla, JJ.), which are quoted above,
concerning the need to appoint in future a Senior Judicial Officer as
Prothonotary and Senior Master so as to facilitate proper exercise of the
functions of the Judge in Chambers delegated to him. That, of course, is a
matter for the administrative side of this Court to deal with.
(NARESH H. PATIL, J.)
(S.C.GUPTE, J.)
(A.K. MENON, J.)
