Jharkhand High Court
Unknown vs Prahlad Singh on 1 August, 2024
Author: Rajesh Shankar
Bench: Rajesh Shankar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(PIL) No.4300 of 2024
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Court on its own motion
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CORAM : HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJESH SHANKAR
HON'BLE MR. JUSTICE ARUN KUMAR RAI
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Order No.02 : dated 1st August, 2024
1. It was brought to the knowledge of the learned Registrar
General that one order has been passed by a Division Bench
of this Court dated 30.07.2024 in Filing No.:-Cr.Appeal (D.B.)
No.17440 of 2024 whereby the operational system of filing
brought in effect by way of Standing Order No.9 of 2024
dated 09.07.2024 issued by the order of the then Hon'ble
Chief Justice, has been stayed.
2. It has then been queried as to what system of filing
would now govern the Registry.
3. Faced with such a situation and after going through the
order passed by the learned Division Bench, a Full Bench
was constituted in order to deal with the current situation.
4. The learned Division Bench has passed order that the
Standing Order is in derogation of the Jharkhand High Court
Rules.
5. We are sitting here to test the veracity of the issue and
further to see if it is the look out of a Division Bench being
critical of the administrative decision of the Chief Justice in
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reference to system of filing and listing of cases and going to
the extent of staying the order of the Chief Justice.
6. We, after going through the said order, have found that
the Standing Order No.9 of 2024 dated 09.07.2024 has been
considered to be contrary to the Jharkhand High Court
Rules. It has been observed in the said order that the
Standing Order being an executive instruction, cannot
override the Jharkhand High Court Rules which is a piece of
subordinate legislation.
7. The learned Division Bench has further observed that
severe difficulty is being faced by the learned members of the
Bar, which has been raised in the Court in one voice. The
learned Division Bench, upon this, has considered the
propriety of the Standing Order dated 09.07.2024.
8. Specific observation has been made that Standing Order
is in the teeth of the subordinate legislation and the Standing
Order having not been concurred by the Full Court, has led
the learned Division Bench in passing the order not to give
effect to the Standing Order dated 09.07.2024.
9. The learned Division Bench has further observed that
till the Jharkhand High Court Rules is amended, the cases
will be listed as per the existing provision of the Jharkhand
High Court Rules, for ready reference the order dated
30.07.2024 is being referred hereunder as :-
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"This matter has been listed today, with a
filing number. The matter is yet to be registered.
2. The matter is still defective. Office has also
raised an objection on maintainability.
3. Learned counsel for the appellant submits
that he was unaware that the matter would be
listed today. He submits that he did not even know
about the progress of the matter as it was difficult
for him to track the matter since the same was not
even registered and without being registered this
matter has been listed.
4. On query, learned counsel for the appellant
and large number of members of Bar submitted
that a Standing Order being Standing Order No.9
of 2024 dated 09.07.2024 has been issued under
the signature of the Registrar General of this Court
and on that basis this matter has been listed
without being registered. Members of the Bar in
one voice stated that because of the said Standing
Order, they are facing severe difficulty. They
submitted that even power has been given to the
learned Registrar General to dismiss a matter if
the defects are not removed. Further to remove the
defects, interlocutory application has to be filed
and if the matter is dismissed, the same cannot be
restored and a fresh application again has to be
filed. Filing and listing of case is governed by the
High Court of Jharkhand Rules and in effect
Standing Order No.9 of 2024 dated 09.07.2024
has superseded the High Court of Jharkhand
Rules without any amendment to that effect.
Learned counsel also submits that the Standing
Order has in fact over ridden the provisions and
procedure laid down by the High Court of
Jharkhand Rules so far as filing and registration
of a case is concerned without amending the said
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Rules. They further submit that as per Rule 69 of
the High Court of Jharkhand Rules, 'Designated
Officer' does not have a power to dismiss a case. It
is contended that Rule 70 of the High Court of
Jharkhand Rules is also not applicable in this
context nor does the Rule 307 of the High Court of
Jharkhand Rules. Further, they submit that law of
limitation will also get affected by virtue of this
Standing Order. They produced a copy of the
Standing Order. The same is kept on record.
5. We have perused the Standing Order. In fact,
this Standing Order amends the High Court of
Jharkhand Rules. The very first line of the
aforesaid Standing Order states that
notwithstanding any provision contained in the
High Court of Jharkhand Rules and previous
Office Orders, this order is being issued. This
suggests that the High Court of Jharkhand Rules
which is a subordinate legislation, has been by-
passed by this Standing Order No.9 of 2024 dated
09.07.2024, which is an executive instruction.
6. The High Court of Jharkhand Rules is a
piece of subordinate legislation, which cannot be
by-passed by any executive order. There is a
procedure to amend these rules.
7. Considering this, to seek clarity in the
matter, we requested the learned Registrar
General to appear before us.
8. The learned Registrar General is present in
the Court and submits that the Rules have not
been amended and this Standing Order has been
issued and is given effect to. He also stated that
there is a proposal to amend the Rules and the
proposal has been sent to the appropriate
Committee for amending the High Court of
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Jharkhand Rules in terms of the Standing Order
No.9 of 2024 dated 09.07.2024.
9. The submission of the learned Registrar
General is suggestive of the fact that the High
Court of Jharkhand Rules has not yet been
amended and this Standing Order has been given
effect which in fact has the effect of amending the
Rules. Cart has been thus put before the horse.
10. The High Court of Jharkhand Rules cannot
be amended without the concurrence of the Full
Court and admittedly, there is no concurrence of
the Full Court.
11. Further, we are of the opinion that without
getting the case first registered, we cannot decide
the issue of maintainability either way. The
instant matter needs to be registered as a case at
the first instance, ahead of being placed before the
Bench, for adjudication of any issues on merits,
including maintainability.
12. Thus, we direct the Registry to immediately
get this matter registered and be numbered as a
pending case under appropriate nomenclature.
Further, the Standing Order No.9 of 2024 dated
09.07.2024 be placed before the Full Court in the
Administrative Side immediately. Till the Full
Court takes an appropriate decision, the Standing
Order No.9 of 2024 dated 09.07.2024 will not be
given effect to.
13. Let a copy of this order be placed before the
Registrar General for needful.
14. Till the High Court of Jharkhand Rules is
amended the cases will be listed as per the
existing provisions of the High Court of Jharkhand
Rules."
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10. This Court has invited the learned members of the Bar
including the senior members of the Bar to assist this Court
with respect to the aforesaid issue. The copies of the paper
book including the order dated 30.07.2024, Standing Order
dated 09.07.2024 and the relevant rules have been supplied
by this Court to the learned President, Advocates' Association
and the Chairman, State Bar Council.
11. The learned President of the Advocates' Association
along with the Secretary of the Association as well as the
Chairman, Bar Council are present.
12. Mr. M.S. Mittal, learned senior counsel, has submitted
that the system which is on is good and going smoothly, but
needs to be further streamlined.
13. The learned President, Advocates' Association, has
placed a representation addressed to the learned Registrar
General, High Court of Jharkhand dated 15.07.2024 for
reviewing the Standing Order No.9 of 2024 dated 09.07.2024,
particularly, the conditions at Clause Nos. 8 and 9.
14. However, it has been submitted orally by Mrs. Ritu
Kumar, learned President of the Advocates' Association that
the said issue was also mentioned before Hon'ble the then
Chief Justice and on the assurance given by Hon'ble the then
Chief Justice, even on that count (Clause Nos. 8 and 9) there
is no objection as of now since the things which are to be
streamlined, will take some time.
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15. It has been submitted by referring to the order passed
by the learned Division Bench wherein it has been observed
that large number of members of the Bar are facing severe
difficulty, to the best of her knowledge, no such submission
has been made in course of the proceeding before the
concerned learned Division Bench.
16. The learned President, Advocates' Association, has
submitted that whatever she has submitted orally, she will
file affidavit to that effect.
17. The Chairman, Bar Council, is present and has
submitted that no difficulty is being faced in filing and
listing. He has also submitted that he will also file an
affidavit in that regard.
18. This Court, before adverting to the issue, needs to refer
herein the relevant provisions of the Jharkhand High Court
Rules based upon which the Standing Order dated
09.07.2024 has been issued. The relevant provisions are Rule
69, 70, 78, 79, 306 and 307 which are being referred as
under :-
"69. Except interlocutory Applications (IA),
applications, petitions and memos of appeal shall
be filed only after stamp report and after the
defect, if any, pointed out by the stamp reporter
have been removed, unless the Designated Officer
be of the opinion that the stamp report regarding
the defects is not correct or that the defects can be
ignored or that they are not curable:
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Provided that the Registrar General,
authorised in that behalf, may permit any
application, petition or memo of appeal to be filed
on the last day of limitation without stamp report.
70. On receipt of the document, the officer
Incharge of the filing counter shall endorse on the
document the date of receipt and enter the
particulars of the said document in the register of
daily filing and cause it to be sent to the
department concerned for examination. If, on
scrutiny the document is found in order, it shall
be duly registered and given a serial number of
registration. It shall also be entered in the
Computer as a Data. The Chief Justice may issue
instructions from time to time, with regard to the
procedure for filing, especially having regard to
computerization requirements and once issued,
those instructions shall be applicable and
enforceable as being part of this Chapter.
78. All defect free applications, petitions, memos
of appeal etc. including such applications,
petitions, memos of appeals in which the defects
have been ignored or are considered to be not
curable, shall be numbered under the respective
heads of cases.
79. Defect free applications, petitions, memos of
appeal, affidavits etc., shall immediately be sent to
the concerned Section for being listed before the
Bench.
306. No case which falls in the category of
Lawazima matter shall be listed in the Court
unless it has been dealt with by the Lawazima
Boards, as prescribed in this Order.
Explanation.--All matters relating to service
of the parties,furnishing particulars or better
particulars for the purposes of service, filing
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requisites, filing applications for condonation of
delay in time-barred cases, filing additional copies
of pleadings or documents, making up of
deficiency in Court fees, or judicial stamps etc.
shall be included in the Lawazima Board. Other
matters may later on be also included in the
Lawazima Board.
307. The Chief Justice may amend the aforesaid
explanation, by way of variation, modification or
addition to the subjects/items included therein
and may also, from time to time, issue
administrative instructions for implementation of
and carrying into effect the provisions of this
Chapter. Such administrative instructions, as and
when issued, shall be deemed to be part of this
Chapter."
19. It is evident from perusal of Rule 69 of the Jharkhand
High Court Rules which stipulates that except interlocutory
Applications (IA), applications, petitions and memos of appeal
shall be filed only after stamp report and after the defect, if
any, pointed out by the stamp reporter have been removed,
unless the Designated Officer be of the opinion that the
stamp report regarding the defects is not correct or that the
defects can be ignored or that they are not curable.
20. The provision as contained in Rule 69 is with respect to
the stage of filing and the filing means that the moment the
case is filed, the same will be accepted by issuance of token
number or the diary number. If the case is defect free, the
same is to be listed in view of the provision of Rule 78.
However, in case the petition is not defect free, the stamp
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report is required to be there and after removal of the defect,
such cases will be listed in view of the provision of Rule 78 of
the Jharkhand High Court Rules.
21. The issue which has been considered by the learned
Division Bench is that the Standing Order is an executive
instruction and in derogation of the Jharkhand High Court
Rules, particularly, the provisions as under Rule 69 and 78
under Chapter-VIII.
22. However, we, after going through the Standing Order
dated 09.07.2024, prima facie, are of the view that there is no
such conflict, rather, it is reiteration of the aforesaid
provisions and to streamline the filing and listing system. For
ready reference, the Standing Order is being referred as
under :-
"Notwithstanding any provision contained in the
High Court of Jharkhand Rules, 2001, previous
Office Orders and practice directions, in exercise
of the powers conferred under Rule 70 and 307 of
the High Court of Jharkhand Rules, Hon'ble the
Chief Justice has been pleased to issue the
following instructions regarding filing, stamp
reporting, defect removal and registration of cases,
which shall come into force from 10.07.2024 and
will remain effective till the suitable amendment is
made in the corresponding High Court of
Jharkhand Rules:
1) In new filing, in all nature of cases, after
generation of Filing number/Token number
(Diary number), Stamp Reporting will be
done on the same day and even if the file
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remains pending, the remaining files to be
reported on the next working day, except in
cases where connected case is necessarily
required, in which stamp reporting must be
done within two days from the date of filing.
If the case is defect free, registration of case
shall be done on the same day or by the
following day. If the case is defective, Stamp
Reporter will send the file directly to Defect
Removal Section without delay on the same
day and details of defects to be uploaded on
the website as soon as Stamp Reporting is
done. An SMS alert may be sent to the
learned lawyers or party-in-person with
message that the case is defective and
compliance date is one week.
2) All nature of defect free cases shall be
registered and sent to respective Judicial
Sections by the succeeding working day
following Stamp Reporting.
3) All nature of defective cases shall be directly
sent to Defect Removal Section by the Stamp
Reporting Section without any delay. File will
remain in Defect Removal Section for seven
(7) working days and defect may be removed
before the Assistant Registrar and Section
Officer of Defect Removal Section.
4) After removal of defects, the case shall be
registered and sent to respective Judicial
Section by the succeeding working day.
5) The aforesaid registered cases received by
the Judicial Section shall be listed before the
Roster Bench immediately.
6) All nature of defective cases, in which defects
are not removed in defect removal section
within a week, will be sent to respective
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Judicial Section which will feed those
defective cases in Data Bank of Lawazima
Board of Joint Registrar (Judicial). Ld
counsel/Party-in-person will be allowed two
weeks time in normal cases, and three weeks
time in exceptional and rare cases by the
Lawazima Board to remove the defects.
7) 1f any defect is not ignored by the Lawazima
Board, the Learned Counsel/ Party-in-
person shall have liberty to file an
Interlocutory Application for ignoring defect
within the stipulated period given by the
Lawazima Board of Joint Registrar (Judicial),
which shall be listed before the Bench aS per
roster with Filing/Token number of case
along with the said I.A.
8) All nature of defective cases, where defects
are not cured or ignored by Lawazima Board
and in the event, no I.A is filed, the case will
be rejected by the Designated Officer to be
appointed by Hon'ble the Chief Justice and
information regarding the same will be
uploaded in the website of Hon'ble Court by
the concerned section weekly, on the first
working day of a week.
9) In defective cases where issue of
maintainability, locus and nature of cases is
pointed out by the Stamp Reporter, the same
shall be sent to Judicial Section by the
Stamp Reporting Section and the Judicial
Section will list the case with Filing/Token
number before the Bench as per the roster."
23. Further, Rule 70 of the Jharkhand High Court Rules
also needs to be referred wherein the Chief Justice has been
given absolute power to issue instruction from time to time
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with regard to the procedure of filing, especially having
regard to computerization requirements and once issued,
those instructions shall be applicable and enforceable as
being part of this Chapter.
24. Thus, the aforesaid statutory provision as contained
under the Rules gives absolute power to the Chief Justice of
this court to regulate the system of filing and listing of the
case.
25. Reference is made to the judgment rendered by Hon'ble
Apex Court in the case of State of Rajasthan v. Prakash
Chand and Others reported in 1998 (1) SCC 1 wherein at
paragraph 59 it has been observed that the administrative
control of the High Court vests in the Chief Justice
alone.
26. The learned Division Bench has observed in the order
dated 30.07.2024 that the Standing Order was required to be
concurred by the Full Court. In the aforesaid context, it will
be purposeful to refer the Rule 15(1) of the Jharkhand High
Court Rules which provides the matters required to be
referred before the Full Court. For ready reference, Rule 15(1)
is being referred as under :-
"15. (1) On the following matters decision shall be
taken by the Judges at a meeting of the Full Court
:--
(i) All appointments which by law are to be made
by the High Court and which are not otherwise
expressly provided for by the rules in this Chapter;
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(ii) All recommendations for the dismissal from
office of Judicial Officers;
(iii) Proposals for designating Advocates as Senior
Advocates under Section 16(2) of the Advocates
Act, 1961;
(iv) Matters relating to the service conditions,
facilities and amenities of the Judges of the Court;
(v) Constitution of Rule Committee under Section
123 of the Code and nominating Members of the
Rule Committee;
(vi) Consideration of matters relating to the Chief
Justices' Conference;
(vii) High Court Calendar."
27. It is evident from the aforesaid Rule that there is no
reference that this issue is required to be sent before the Full
Court for its concurrence and the reason is obvious that
when the absolute power has been conferred to the Chief
Justice of this Court to issue instruction which shall be
enforceable as being part of Chapter-VIII and in such
circumstances, if the decision taken in the administrative
side by the Chief Justice of this Court in regulating the
procedure of filing and listing is sent before the Full Court for
concurrence, then the power conferred to the Chief Justice of
this Court will be abrogated.
28. In such circumstances, the issues which require
consideration by this Court are -
(i) Whether the stipulation made in the Standing
Order No.9 of 2024 dated 09.07.2024 can be
considered to be in supersession to the Jharkhand
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High Court Rules, particularly the provision as
contained under Rule 69 and 78 thereof?
(ii) Whether the stipulation so made in the Standing
Order is in consonance with the provision of Rule
69 and 70 and is there any requirement to send it
before the Full Court?
(iii) Whether the reference which has been made by
the learned Division Bench for placing the
Standing Order before the Full Court for its
concurrence is required?
(iv) Whether contrary to the condition put under Rule
15(1) where the matters to be considered by the
Full Court have been provided, can the procedure
of filing and listing be sent before the Full Court
for its concurrence?
(v) Whether it would be considered to be in conformity
with the principle of judicial discipline for a Single
or Division Bench of the High Court to interfere
with the decision taken by the Chief Justice on the
administrative side, particularly, concerning
administration on filing and daily listing of the
cases, even on judicial side?
29. Let the learned Registrar General of this Court be
impleaded as a party.
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30. The learned Registrar General is directed to file affidavit
showing the occasion for issuance of the Standing Order No.9
of 2024 dated 09.07.2024.
31. The State Bar Council through its Chairman and the
Advocates' Association through its President be impleaded as
party.
32. Let respective affidavits be filed by the Association and
the Council on or before the next date of hearing.
Ad interim order
33. The learned Division Bench has also issued direction as
contained in paragraph 12 and 14. For ready reference
paragraphs 12 and 14 are being referred as under :-
"12. Thus, we direct the Registry to immediately get
this matter registered and be numbered as a pending
case under appropriate nomenclature. Further, the
Standing Order No.9 of 2024 dated 09.07.2024 be
placed before the Full Court in the Administrative Side
immediately. Till the Full Court takes an appropriate
decision, the Standing Order No.9 of 2024 dated
09.07.2024 will not be given effect to.
14. Till the High Court of Jharkhand Rules is
amended the cases will be listed as per the existing
provisions of the High Court of Jharkhand Rules."
34. At paragraph 12, the direction has been issued by
learned Division Bench observing that till the Full Court
takes an appropriate decision, the Standing Order No.9 of
2024 dated 09.07.2024 will not be given effect to.
35. Further, at paragraph 14 it has been directed that till
the Jharkhand High Court Rules is amended, the cases will
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be listed as per the existing provisions of the High Court of
Jharkhand Rules.
36. The law is well settled that while granting ad interim
stay, three principles are required to be considered -
(i) Prima facie case;
(ii) The irreparable loss; and
(iii) Balance of convenience.
37. In Dalpat Kumar and Another vs. Prahlad Singh
and Others, reported in AIR 1993 SC 276, the Hon‟ble
Apex Court has explained the scope of interim order i.e. the
phrases "prima facie case"; "balance of convenience" and
"irreparable loss" are not rhetoric phrases for incantation but
words of width and elasticity to meet myriad situations
presented by man's ingenuity in given facts and
circumstances, but always is hedged with sound exercise of
judicial discretion to meet the ends of Justice. The facts are
eloquent and speak for themselves. It is well-nigh impossible
to find from facts prima facie case and balance of
convenience.
38. Reference is also required to be made with respect to
the principle governing the field while granting ad-interim
stay by the Court of Law as has been held by the Hon'ble
Apex Court in the case of M. Gurudas & Ors. Vrs.
Rasaranjan & Ors., reported in AIR 2006 Supreme Court
3275, wherein at para-19, it has been laid down that while
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considering the application for injunction, the Court should
pass an order thereupon having regard to prima facie case,
balance of convenience and irreparable injury.
39. We, after going through the order passed by the learned
Division Bench, have found that the principle for granting ad
interim stay, as has been laid down by the Hon'ble Apex
Court in the judgments referred hereinabove, has not been
taken into consideration.
40. Further, the observation has been made that the
learned members of the Bar are facing severe difficulty,
however there is no material to that effect since the
Advocates' Association has not been called upon and no
complaint or grievance has been made by any of the parties.
41. It also needs to be referred herein that the Standing
Order has not been questioned by anyone and, as such, in
absence of any motion, the said order has been passed.
42. The Court has reached a preliminary satisfaction that
order passed by the learned Division Bench staying the
Standing Order No.9 of 2024 dated 09.07.2024 suffers from
non-consideration of the above mentioned provisions as
contained in Rule 69 and 78 of the Jharkhand High Court
Rules.
43. Further, in testing the order of learned Division Bench,
we are also satisfied that if immediate recourse is not taken,
it will result into irreparable loss and injury as the entire
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filing system will get altered creating a mess and chaos in the
Registry and filing system.
44. Moreover, this Court finds that the element of balance
of convenience is also met in staying the order passed by the
learned Division Bench as the damage caused would not be
in a position to be restored, if such directions are allowed to
be given effect to.
45. Therefore, being satisfied in three tests, this Court is of
the view that the order passed by learned Division Bench
merits stay of its operation during the pendency of the
matter.
46. Hence, the order dated 30.07.2024 passed in Filing
No.:-Cr.Appeal (D.B.) No.17440 of 2024 is stayed so far as it
relates to the issue of ad interim stay of the Standing Order
No.9 of 2024 dated 09.07.2024.
47. List this matter 06.08.2024.
48. So far as Filing No.:-Cr.Appeal (D.B.) No.17440 of 2024
is concerned, the office is to proceed in accordance with
rule/Standing Order.
(Sujit Narayan Prasad, A.C.J.)
(Rajesh Shankar, J.)
(Arun Kumar Rai, J.)
Birendra/
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