Delhi High Court
Maruti Suzuki India Limited vs Delhi Auto General Finance ... on 31 January, 2017
$~6 to 9.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 851/2015
Reserved on: 16.12.2016
Date of decision: 31.01.2017
IN THE MATTER OF:
MARUTI SUZUKI INDIA LIMITED ..... Appellant
Through: Mr. Manik Ahluwalia, Advocate
versus
DELHI AUTO GENERAL FINANCE PRIVATE LIMITED..... Respondent
Through: Dr. Kamini Lau, applicant in CM APPL.
33469/2016.
Ms. Zubeda Begum, Advocate, appointed as
Amicus Curiae.
+ RFA 69/2016
MEENA KUMARI ..... Appellant
Through: None
versus
RAJENDER KUMAR & ANR ..... Respondents
Through: Dr. Kamini Lau, applicant in CM APPL.
33472/2016.
Ms. Zubeda Begum, Advocate, appointed as
Amicus Curiae.
+ RFA 76/2016
MUKESH KUMAR GUPTA ..... Appellant
Through: Dr. N. Pradeep Sharma, Advocate with
Mr. S.K. Rout and Mr. Pawan Kumar, Advocates
RFA 851/2015, 69/2016, 76/2016 and 304/2016 Page 1 of 8
versus
RAJNEESH GUPTA & ORS ..... Respondents
Through: Dr. Kamini Lau, applicant in CM APPL.
33473/2016.
Ms. Zubeda Begum, Advocate, appointed as
Amicus Curiae.
+ RFA 304/2016
TDI INFRASTRUCTURE LIMITED ..... Appellant
Through: Mr. Anil Sapra, Senior Advocate with
Mr. Lavnish Kumar, Ms. Rupali Kapoor,
Ms. Piyusha Singh and Mr. Siddharth Arora,
Advocates
versus
RAJESH MITTAL & ANR ..... Respondents
Through: Dr. Kamini Lau, applicant in CM APPL.
33475/2016.
Ms. Zubeda Begum, Advocate, appointed as
Amicus Curiae.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.
CM APPL. 33469/2016 in RFA 851/2015
CM APPL. 33472/2016 in RFA 69/2016
CM APPL. 33473/2016 in RFA 76/2016
CM APPL. 33475/2016 in RFA 304/2016
(by the applicant, Dr. Kamini Lau for modification of the orders dated
16.05.2016, 25.04.2016, 05.05.2016 and 10.05.2016 passed in RFA
851/2015, 69/2016, 76/2016 and 304/2016 respectively)
1. The applicant, who is a serving Judicial Officer of the Delhi Higher
Judicial Services, has filed the present applications for modification of the
judgment dated 25.04.2016 passed in RFA 69/2016, judgment dated
05.05.2016 passed in RFA 76/2016, order dated 16.05.2016 passed in RFA
851/2015 and the order dated 10.05.2016 in RFA 304/2016, passed by the
Bench presided over by Rajiv Sahai Endlaw, J and for seeking expungement
of certain observations made therein, specifically relating to her.
2. These applications were listed before Siddharth Mridul, J, the
predecessor Bench on the same roster on 15.09.2016. The applicant had
appeared in person on the said date and had sought modification of the
aforesaid orders to a limited extent as set out in para 3 of the applications,
which was reproduced in the order dated 15.09.2016, and is also being
reproduced hereinbelow for ready reference:-
"3. That despite the fact that the Hon'ble Appellate Court failed to
notice that the issue in appeal related to the conduct of the parties in
trying to secure a favourable order from the District Court by
concealing the litigations pending before the Delhi High Court
relating to the same property and restrain orders passed therein, the
applicant makes it clear that she is neither concerned with the
justifiability or legality of the orders passed, nor with the merits of the
case before the appellate court. The observations/comments in
question as detailed below being totally unwarranted and indubitably
effecting the self esteem and career of the applicant, a member of the
District Judiciary, she accordingly seeks the expurgation/deletion of
the same. The details of the cases/Regular First Appeals wherein
these observations/comments have been made are detailed as under:-
Sr. Details of the Status Comments made by the
No. case/order High Court
1. RFA No.304/2016, Pending Para 13 "A copy of the
CM No.17596/2016 before this impugned judgment and
and 17597/2016 Court for decree along with a
under the title "TDI 21.10.2016 copy of this order be
Infrastructure Ltd. placed before the
vs. Rajesh Mittal & Committee of the
Anr." decided on Inspecting Judges of the
10.05.2016 learned ADJ ......"
(Page 3 para 13 of the
order)
2. RFA No.851/2015 Pending Para 4 ".... A copy of
and CM before this the impugned judgment
No.30785/2015 Court for along with a copy of this
under the title 09.11.2016 order be placed before
"Maruti Suzuki the Committee of the
India Ltd. vs. Delhi Inspecting Judges of this
Auto General Court of the learned
Finance PVT. Ltd." Additional District
decided on Judges...."
16.05.2016
(Annexure-A)
3. RFA No.76/2016 Disposed A copy of the impugned
and RFA of by this judgments and decrees
No.79/2016 under Court on along with the copy of
the title "Mukesh 05.05.2016 this order be placed
Kumar Gupta vs. before the Committee of
Rajneesh Gupta & the Inspecting Judges of
Ors." decided on the learned Additional
05.05.2016. District Judge ..... (Page
10, Last Page of
Judgment, comments
made after the
judgment)
4. RFA No.69/2016, Disposed Para 14 "..... A copy of
CM No.4972/2016 of by this this judgment be also
and CM Court on placed before the
No.4973/2016 25.04.2016 Committee of the
under the title Inspecting Judges of the
"Meena Kumari vs. Additional District
Rajinder Kumar & Judge......"(Page 4 Para
Anr." decided on 14 of the Judgment,
25.04.2016. comments made at the
end of the judgment.)
"
3. On examining the extracted paragraphs, the predecessor Bench had
observed that it was not considered just, proper or expedient to issue notice
to the parties in the appeals for considering the relief prayed for in the said
applications. With these observations, the applications were adjourned to
27.10.2016. On 27.10.2016, while directing that the aforesaid orders insofar
they relate to the applicant shall not be given effect to till the next date, this
court had directed that the said applications shall be taken up on 18.11.2016.
On 18.11.2016, the matters were adjourned for today. In the meantime, vide
order dated 28.11.2016 passed in RFA 304/2016, Ms. Zubeda Begum,
Advocate was appointed as an Amicus Curiae to assist the Court on the
legal aspect raised by the applicant and the Registry was directed to furnish
copies of the applications to her.
4. As noted above, the applicant is a serving Judicial Officer for the past
24 years and is aggrieved by the observations relating to her made in the
four orders referred to in para 2 above on the ground that the same are
totally unwarranted and they not only affect her self-esteem and judicial
reputation, but also violate the norms of judicial propriety. She requests that
they ought to be expunged.
5. At the outset, this Court had expressed its reservations about taking up
the applications and had opined that they ought to be placed before the same
Bench that had passed the orders in question. As a result, the applicant and
the learned Amicus Curiae were requested to commence arguments by first
addressing this Court on the propriety of entertaining the present
applications, instead of placing them for orders before the concerned Bench.
6. Ms. Zubeda Begum, learned Amicus Curiae, on instructions from the
applicant, had sought to clarify that while deciding these applications, this
Court would not be required to go into the merits of the case and therefore,
they should not be treated as applications for review, but simply as
applications for seeking recall and expungement of the observations made in
the orders mentioned above qua the applicant. In support of this submission,
reliance has been placed on the decision of the Rajasthan High
Court(Jodhpur Bench) in Criminal Misc. Petition No.1075/2011 entitled
Sita Ram vs. State of Rajasthan and the Division Bench of the Allahabad
High Court in the case of Bal Kishan Arora vs. Civil Judge, Arora and Ors.
reported as 2002 (2) AWC 1724.
7. On her part, the applicant had requested that the applications may not
be placed before the concerned Bench that had passed the orders in question,
by stating that she has a misgiving about the fairness of the treatment that
may be meted out to her due to the nature of remarks directed against her.
8. On merits, it was submitted that the directions issued in the orders to
the effect that a copy of the impugned judgments pronounced by the
applicant be placed before her Committee of the Inspecting Judges, have not
been made once, but consecutively on four separate occasions and are
completely unwarranted. Reference was made to the decision of the
Supreme Court in the cases of V.K. Jain vs. High Court of Delhi through
R.G. and Ors. reported as (2008) 17 SCC 538 and Amar Pal Singh vs. State
of Uttar Pradesh and Anr. reported as (2012) 6 SCC 491, to urge that the
threat and fear of administrative action on every order of a subordinate court
by the higher court in revision/appeal/writ tends to create a fear psychosis
amongst the subordinate judges. It was canvassed that any such direction as
have been issued in the present cases, that too without affording an
opportunity to the judicial officer, amounts to penalising her. It was thus
prayed that identical observations made successively in four different
appeals where judgments have been pronounced by the applicant have been
assailed, may be recalled and expunged.
9. Mr. Anil Sapra, learned Senior Advocate appearing for the appellant
in RFA 304/2016 had clarified that he was appearing as an officer of the
Court only to assist it on the inherent nature of the present applications. He
sought to draw a distinction between an application for review and an
application for recall of an order by referring to the provisions of Order
XLVII Rule 1 CPC. The decision in the case of Bharat Singh vs. Firm Sheo
Pershad Giani Ram and Ors. reported as AIR 1978 Delhi 122, where a
Division Bench of this Court has held that a review application can only be
filed by a party to the lis and not by a third party, was cited by him to state
that in the present case, since the applicant being the author of the judgments
impugned in the four appeals, is not a party to the lis, an application filed by
her for seeking recall of the orders on the ground that she has been adversely
affected, is maintainable before this court, being the successor roster Bench.
10. Technically speaking, the scope of a review application is distinct
from a recall application. In a review application, the court is required to
examine the merits of the case to decide as to whether there is an error
apparent on the face of the record, whereas while passing an order of recall,
the court does not necessarily have to go into the merits of the case. It is
also not in dispute that as per the current roster assigned by Hon'ble the
Chief Justice, this court is the successor Bench on the very same roster as
was handled by the predecessor Bench that had passed the orders in question
in RFA Nos. 69/2016, 76/2016, 304/2016 and 851/2015. Yet, in the fitness
of things, this court is of the opinion that propriety demands that these
applications be first placed before Hon'ble the Chief Justice on the
administrative side for taking a view and for assignment to an appropriate
Bench.
11. Accordingly, while refraining from expressing an opinion on the
merits of the applications, the Registry is directed to place them before
Hon'ble the Chief Justice on the administrative side, for appropriate orders.
The interim order dated 27.10.2016 shall continue to operate, till the said
applications are taken up for hearing by the appropriate Bench and orders
passed.
HIMA KOHLI, J
JANUARY 31, 2017
rkb/mk
