Bombay High Court
Sabina Lakdawala vs Komal Singh Rajput And 16 Ors on 21 January, 2022
Bench: G.S. Patel, Madhav J. Jamdar
911-OSWPL-990-2022-RE-REVISED.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.990 OF 2022
Sabina Lakdawala ...Petitioner
Versus
Komal Singh Rajput & Ors ...Respondents
Mr Mathew Nedumpara, with Hemali Merva, i/b Nedumpara &
Nedumpara, for the Petitioner.
Mr Milind More, Addl GP, for the State.
Mr Asadali Margaonwala, for Respondents Nos. 2, 3, 5 to 8.
CORAM G.S. Patel &
Madhav J. Jamdar, JJ.
DATED: 21st January 2022
PC:-
1. The writ petition impugns an order dated 6th December 2021
(later confirmed on 14th December 2021) by the Presiding Officer of
the 12th Metropolitan Magistrate Court, Bandra, Mumbai passed
below Exhibit 3 in D. V. Complaint No. 1200191. By the order, after
a fairly lengthy discussion on what apparently transpired before the
Court, the learned Judge rejected the Writ Petitioner's application.
However, the impugned order clearly says that this rejection was
"without hearing both parties on merits". Thus, the rival
contentions were not addressed on merits at all. This is also evident
from the order itself.
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2. Such an order is difficult to sustain. Previously, too, a Division
Bench of this Court on 3rd November 2021 had directed that the
decision had to be on merits. That direction, even if at an earlier
stage, obviously applies to every stage of the proceeding.
3. Paragraph 14 of the impugned order shows that in terms of
directions issued by the Supreme Court in the case of Rajnesh vs
Neha & Anr,1 both the sides were called upon to file Affidavits of
assets and liabilities. However, Mr Mathew Nedumpara submitted
that the Petitioner is not bound by that judgment. He maintains that
position today. We deem appropriate to reproduce paragraph 129 of
the said judgment of Rajnesh (supra):
"129. The Affidavit of Disclosure of Assets and Liabilities
annexed as Enclosures I, II and III of this judgment, as
may be applicable, shall be filed by both parties in all
maintenance proceedings, including pending proceedings
before the concerned Family Court/District Court/
Magistrates Court, as the case may be, throughout the
country."
4. Even before us, Mr Nedumpara has attempted an argument
that his client is under no compulsion to file any such affidavit. He
makes very much the same argument that he made before the Court
below. Mr Nedumpara is in error. If he feels aggrieved by a Supreme
Court decision, his remedy lies elsewhere. And while he may believe
that he or his client are not bound by a particular decision of the
Supreme Court, we most emphatically are. We are bound by every
decision of the Supreme Court. And so is the court below. It is one
1 (2021) 2 SCC 324
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thing to submit that a particular decision can be distinguished or is
inapplicable. It is a very different thing to argue that a decision of
the Supreme Court is not binding or that parties and their lawyers
can pick and choose which decision of the Supreme Court binds and
does not bind. The law is clear, as is Article 141 in regard to the law
declared by the Supreme Court being being on "all courts within the
territory of India". Therefore, we make it clear that if any party
refuses to file or fails to file Affidavit of Disclosure of Assets and
Liabilities as directed then the Presiding Officer is free to draw
adverse inference.
5. Resultantly, although the orders of 6th December 2021 and
14th December 2021 are quashed and set aside, certain directions
are necessary. The application by the Writ Petitioner, numbered as
Exhibit "3", is restored to file. The Presiding Officer will list the
matter before him on 27th January 2022, on production of an
authenticated copy of this order. He will then issue directions
including filing of Affidavits of Disclosure of Assets and Liabilities
as contemplated in Rajnesh (supra), filing of replies by all
Respondents, a rejoinder, if any, and scheduling a final disposal of
the application strictly on merits and, if requested by the both sides,
allowing sufficient time to file brief concise Written Submissions not
exceeding 10 pages each. These Written Submissions may be
permitted to be filed in advance (i.e., not after the arguments).
6. Neither party is permitted to seek an adjournment before the
Presiding Officer once the schedule is fixed.
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7. We request the Presiding Officer to dispose of the application
on merits with a reasoned order on or before 28th February 2022.
The learned Judge is required to render a decision on merits entirely
uninfluenced by the impugned orders.
8. All contentions are specifically left open on all points.
9. We have expressed no opinion on the merits.
10. All concerned will act on production of a digitally signed copy
of this order.
(Madhav J. Jamdar, J) (G. S. Patel, J)
21st January 2022
