Formosa Plastics Corporation Usa vs Ashok Chauhan & Ors.
2016 Latest Caselaw 4492 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+       EX.P.38/1998 and EX.APPL.(OS) 438/2011, 439/2011 &
        414/2016

%                            Date of Decision : 13th July, 2016

        FORMOSA PLASTICS CORPORATION USA ..... Petitioner
                Through: Ms. Shyel Trehan and Ms. Manjira
                          Das Gupta, Advocates.

                          versus

        ASHOK CHAUHAN & ORS.                 ..... Respondents
                Through: Mr. Rajiv Nayar, Sr. Advocate with
                         Mr.Shyam Singh, Advocate for
                         Respondent No.1.
                         Mr. A.P. Singh, Adv. for Respondents
                         No.2 and 3.
                         Mr. A.S. Chandhiok, Sr. Advocate.
                         with Mr. Rajan Chawla, Advocate for
                         Respondent No.4.

CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA

                            JUDGMENT

1. On 31st March, 2011, this Court dismissed Ex. P. 38/1998 as there was no appearance on behalf of the decree holder.

2. The decree holder filed an application for restoration of the petition which was dismissed as time barred on 02 nd August, 2011. The decree holder filed an application for review of the order dated 02nd August, 2011, which was also dismissed on 20th September, 2011. The decree holder preferred two appeals before the Division Bench,

namely, EFA(OS) No.42/2011 against the order dated 31st March, 2011 and EFA(OS) No. 41/2011 against the orders dated 02nd August, 2011 and 20th September, 2011.

3. Vide judgment dated 18th May, 2016, the Division Bench has allowed the appeals and remanded back the matter to this Court to consider whether the decree holder has disclosed sufficient cause for delay in filing I.A. 438/2011 for setting aside of the order dated 31 st March, 2011. The relevant portion of the judgement dated 18th May, 2016 is reproduced hereunder:-

"18. .... The case was accordingly adjourned to 26th October, 2010, whereupon, it was further adjourned to 15th November, 2010. On that day, the matter was heard in part. It is not in dispute that the withdrawal of EA 538/2010 was because two application urging the same contentions, i.e. that the appellant could not maintain the execution proceeding were pending (EA 525/1999 and EA 569/1999). The relief claimed in the applications which essentially urged that the execution proceedings were not maintainable, were heard on 15.11.2010. On 16th December, 2010, the learned judge did not sit, as he was on leave. The next date of hearing was 31-03-2011; on that date, Midha, J dismissed the entire execution for non-prosecution. A plain reading of the said order would show that the learned judge did not take into consideration the fact that the matter was part- heard by Justice Shali".

"20. The decision of the above question itself would be determinative of the issue of maintainability. However, since counsel had also urged the issue of jurisdiction of the learned single judge who dismissed the execution (Midha, J), it would be necessary to return findings on that aspect. There is no dispute that the power of settling the roster of hearing of cases and their categorization for the purpose, is exclusively that of the Chief Justice. Rule 5 of the Delhi High Court

notification dated 12.12.1966, in the exercise of power conferred under Section 7 of the Delhi High Court Act, 1966, empowers the Chief Justice to settle the roster: "...The List shall be published in accordance with the roster settled by the Hon'ble Chief Justice." This norm obliges every judge of this court to exercise her (or his) jurisdiction strictly in accordance with the roster allocation; Prakash Chand underlined this in the following terms:

"it follows that no judge or a Bench of judges can assume jurisdiction in a case pending in the High Court unless 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 it can be permitted."

Article 225 of the Constitution of India provides that: "Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution".

21. The Note appended to the roster drawn in which Justice Midha was assigned cases, including execution matters, clearly stated that "Part-heard" matters were not assigned. They remained with the judge who had heard them- in this case, Justice Shali. What appears to have happened is that the Office or Registry of this court listed the Part heard applications with EP 38/1998 before Justice Midha. This was inadvertent. It is equally evident that the said judge did not notice the previous order sheets, especially the order of 15.11.2010 which clearly reflected that the case was heard partly by Justice Shali. On the

assumption that the case was part of his board (i.e. the list and class of matters which he could hear though it clearly was not, in view of the Note to the roster) Justice Midha dismissed the execution petition itself.

22. The observations in Prakash Chand, in this court's opinion are clear that every judge cannot exercise jurisdiction over all matters. Though all judges of the High Court have equal powers, they work to a plan. The role assigned to the Chief Justice is unique - she prepares the roster and assigns the judge or judges concerned. The Chief Justice also has exclusive power to form Benches and indicate who would man them. A combined and logical reading of Rule 5 of the Notification of 1966, read with Section 7 of the Delhi High Court Act and Article 225 leave no room for doubt that when certain cases are excluded from the category or class of cases assigned to a particular judge, she or he cannot deviate from the roster and decide or deal with such excluded matters. The respondent/judgment debtor had argued that such a situation does not result in the invalidity of the order itself. Counsel had urged in this regard, that the order would be merely irregular and that the appellant's omission to urge it initially precludes it from doing so now.

23. This Court is of the opinion that given the nature of the declaration of law in Prakash Chand (supra), the deviation from the roster was a serious matter, which the learned judge should have considered, in the application for recall of the order (dated 31.03.2011). Rosters are prepared for the smooth and efficient functioning of the High Court; each judge exercises the jurisdiction and powers vested in the court, in regard to the specific matters allocated to her or him. Once this discipline is breached, the orderly functioning of the institution would be broken resulting in unwholesome consequences. The contravention of the roster condition is both a matter of breach of jurisdiction as well as a serious breach of propriety. The Court no doubt comprises of judges who exercise equal powers; at the same time it is a collegial

institution, wherein the orders of each judge or Bench are deemed to be that of the entire court. The centrality of the Chief Justice's role here assumes significance: though possessing equal powers and jurisdiction as other colleagues, she has an added responsibility, as captain of the team to demarcate the tasks that each judge is to carry out. While no one can require a Judge of any High Court to decide causes that are in her or his domain and no order dictating the "how" and "when" can be given to her (or him). What cases are assigned to her/him is the domain of the Chief Justice. A Judge cannot determine what kinds of cases he or she would hear and decide. In individual cases, there may be compelling reasons to recuse. But as to what class or category are to be assigned in roster is the exclusive task of the Chief Justice. Having regard to these factors, the argument about lack of jurisdiction is without merit. At the same time, the question that would still remain unaddressed is whether the appellant filed its application under Section 151 CPC (which is the appropriate application, nomenclature apart) after showing sufficient cause for the delay occasioned in the filing."

(Emphasis supplied)

4. After the remand, the matter was listed before this Court on 27th May, 2016, when this Court perused the record and observed the prima facie view that the order dated 31st March, 2011 warrants suo moto correction in exercise of power under Section 153 read with Sections 151 and 152 of the Code of Civil Procedure as the case was partly heard by V.K. Shali, J. on 15th November, 2010 and, therefore, on 31st March, 2011, this Court was required to send the matter to the Court of V.K. Shali, J. The parties were heard on this limited aspect on 27th May, 2016 and 1st June, 2016.

5. Submissions of the petitioner:

5.1. On 15th November, 2010, the execution petition was partly

heard by V.K. Shali, J. and listed for 16th December, 2010. The order dated 15th November, 2010 is reproduced hereunder:

"Arguments heard in part.

List on 16.12.2010."

5.2. On 16th December, 2010, V.K. Shali, J. was on leave and the execution petition was renotified for 31st March, 2011. Relevant portion of the order dated 16th December, 2010 is reproduced hereunder:

"The Hon'ble Judge is on leave today.

List on 31.3.2011."

5.3. On 30th March, 2011, there was change of roster. As per the roster dated 30th March, 2011, the part-heard matters were continued with the respective Benches. Note '2' of the Roster is reproduced hereunder:

"2. Matters other than part-heard, presently pending before various Benches shall stand transferred to the respective Benches as per the above roster."

5.4. Since the part-heard matters were not assigned to this Court, the Order dated 31st March, 2011, is erroneous and warrants correction. Reliance is placed on State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, in which the Supreme Court held that the Chief Justice of the High Court alone has the prerogative to distribute business/work of the High Court both judicial and administrative and the Judges can do only such business/work as is allotted to them. It was further held that no

Judge can assume jurisdiction unless the case is allotted to him under the orders of the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court.

5.4.1. Reliance is placed on Devi Dayal Textile v. Nand Lal, AIR 1977 Del 7; Keshardeo Chamria v. Radha Chamria, AIR 1953 SC 23; Ram Prakash Agarwal v. Gopal Krishan (Dead through LRs), (2013) 11 SCC 296; Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550; Budhia Swain v. Gopinath Deb, (1999) 4 SCC 396 and; Dadu Dayal Mahasabha v. Sukhdev Arya, (1990) 1 SCC 189 on the power of this Court to suo moto rectify its order.

6. Submissions of the respondents:

6.1. The execution petition was not part-heard and, therefore, this Court rightly dismissed the execution petition on 31st March, 2011.

6.2. The order dated 31st March, 2011 has merged with the judgment dated 18th May, 2016 passed by the Division Bench and, therefore, this Court cannot recall its order without deciding the re-call application bearing E.A. 438/2011. 6.3. The respondents be permitted to seek clarification from the Division Bench as to whether this Court can invoke Sections 151, 152 and 153 of the Code of Civil Procedure. 6.4. This Court is not competent to hear this matter and it can be heard only by a designated Commercial Court. 6.5. The respondents have preferred Special Leave Petition against

the judgment dated 18th May, 2016, and, therefore, the hearing be deferred.

6.6. Reliance is placed on Kishore Samrite v. State of Uttar Pradesh, (2013) 2 SCC 398; Mustan Taherbhai v. Commissioner of Central Excise & Customs, (2011) 4 SCC 660; High Court of Andhra Pradesh v. Special Deputy Collector (L.A.), Andhra Pradesh, (2007) 13 SCC 580, Kunhayammed v. State of Kerala (2000) 6 SCC 359; State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1 and; Om Prakash Dwivedi v. State of U.P. passed in Special Appeal No.1933/2013 on 12th December, 2013 by Allahabad High Court.

7. Findings 7.1. This petition was partly heard by V.K. Shali, J., on 15 th November, 2010. As per the Roster dated 30th March, 2011, the part-heard matters were not transferred to the Roster Benches and, therefore, this matter was to be listed before V.K. Shali, J. on 31st March, 2011. Reference may be made to Note 2 of the Roster dated 30th March, 2011.

7.2. Since this matter was not transferred to this Court, this Court was required to send this matter back to the Court of V.K. Shali, J. on 31st March, 2011. The order dated 31st March, 2011 dismissing the petition is an inadvertent defect/error, which warrants suo moto correction in exercise of the power under Section 153 read with Sections 151 and 152 of the Code of Civil Procedure.

7.3. The defect/error in the proceeding dated 31st March, 2011 is apparent on the face of the record and elaborate arguments on the grounds of fact and law are not required to discover the same.

7.4. Sections 153 of the Code of Civil Procedure empowers the Court to suo moto rectify any defect/error in the proceeding. Section 151 of the Code of Civil Procedure confers inherent power on the Court to correct its decision to undo injustice to any party resulting from the order of this Court. The principle behind these provisions is that no party should suffer due to the mistake of the Court.

7.5. The basic philosophy inherent in these provisions is universal acceptance of human fallibility. Rectification of an order to correct the defects and errors stems from the fundamental principle that justice is above all and manifest injustice is curable in nature. The technicalities cannot overreach the concept of justice.

7.6. This Court has ample power to rectify the inadvertent defects and errors. Once the Court is satisfied that there is a defect or error in the proceedings, it would not only be proper but also obligatory, both legally and morally, to correct the said defect/error.

7.7. A litigant deserves to be protected against the mistake of the Court. The first and foremost duty of all Courts is to take care that the act of the Court does no injury to any of the suitors. The maxim Actus Curiae Neminem Gravabit (An act of the

Court shall prejudice no one) is founded upon justice and good sense; and affords a safe and certain guide for the administration of the law.

7.8. With respect to the respondents' objection that this matter was not part-heard, this Court is of the view that whenever it is recorded in the order sheet that the matter has been partly heard, it is not open to any of the parties or any Court before which the matter is subsequently listed, to take a contrary view. In such cases, the matter has to be listed before the same Bench, which had partly heard the matter. This Court, therefore, does not permit the respondents to contend that the matter was not part- heard.

7.9. The respondents' argument that this Court has become functus officio and cannot exercise the suo moto power is rejected. The correction of any defect or error can be done suo moto by the Court at any stage without any application by the parties. The power to rectify the defect/errors to prevent the injustice is very wide. The duty to do justice shall prevail over the technicalities.

7.10. With respect to the respondents' objection that the order dated 31st March, 2011 has merged with the judgment dated 18th May, 2016 and, therefore, this Court cannot recall its order without deciding the recall application, this Court is of the view that there is no impediment in the judgment of the Division Bench to the correction of the order dated 31st March, 2011 by this Court in exercise of the powers under Sections 151, 152 and 153 of

the Code of Civil Procedure. The Division Bench has clearly observed in the judgment dated 18th May, 2016 that this petition, having been partly heard by V.K. Shali, J. on 15 th November, 2010, was not assigned to this Bench as per the Note appended to the Roster and therefore, could not have been heard by this Bench on 31st March, 2011. The Division Bench further observed that the Registry inadvertently listed this petition before this Bench. It was further observed that the deviation from the Roster was a serious matter, which should have been considered by this Bench. The Division Bench further observed that the violation of the Roster condition is both a matter of breach of jurisdiction as well as a serious breach of propriety.

7.11. The respondents' objection to the competency of this Court is also rejected. The Division Bench has remanded back the matter to this Court by name and, therefore, this Court is fully competent to deal with this matter.

7.12. This Court, as a Court of record, owes a duty to itself to ensure that its record is free from any blemish or error. To hold otherwise would mean that this Court is powerless even after discovering the error.

7.13. The Courts have to apply the law in a meaningful manner which sub-serves the ends of justice-that being the life-purpose for the existence of the institution of Courts. The power to correct a defect/error is intended to serve the ends of justice and is not governed by any narrow or technical limitations.

7.14. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred and the other side cannot claim to have vested right in injustice being done.

7.15. The judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. 7.16. The rectification of a defect/error might to a certain extent have an unsettling effect to what has already become settled, but the correction is being made not due to any fault of the parties but of the Court whose mistake cannot be allowed to prejudice the interest of the parties.

8. Conclusion 8.1. In exercise of the suo moto power under Sections 153 read with Sections 151 and 152 of the Code of Civil Procedure, this Court recalls its order dated 31st March, 2011.

8.2. Since the order dated 31st March, 2016 has been recalled, Ex.

Appl. Nos.438/2011 and 439/2011 have become infructuous and are disposed of. Ex. Appl. No.414/2016 is dismissed. 8.3. Ex.P. No.38/1998 was part-heard before V.K. Shali, J., who has since retired. In that view of the matter, subject to orders of Hon'ble the Chief Justice, list before Regular Roster Bench on 1st August, 2016.

J.R. MIDHA, J.

JULY 13, 2016 Rsk/Dev