High Court is a chartered High Court and as such the provisions of the Code of Civil Procedure, 1908 is not application to the Original Side suits as provided in section 120 of the said Code. The form of memorandum and the documents accompanying the same in respect of an appeal from judgments of first stance in the Original Side of this Court i.e. appeals to a Division Bench is clearly specified in Rule 2 of Chapter XXXI of the Original Side Rules of this Court which has been framed in terms of Clause 37 of the Letters Patent being applicable to this Court.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
ORIGINAL SIDE
Mr. Sandip Kumar Bhattacharyya Vs. Registrar, Original Side, High Court, Calcutta & Ors.
WP 348 of 2017
GA 2442 of 2018
Present : The Hon’ble Justice Biswanath Somadder & The Hon’ble Justice Arindam Mukherjee
For the petitioner : Mr. Sandip Kumar Bhattacharyya
ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ย ….. Advocate (in-person)
For the Respondents : Mr. K.C Garg, Ms. Sunita Agarwal … Advocates
Heard on : 25.01.2019, 01.02.2019, 15.02.2019, 22.02.2019, 01.03.2019 & 29.03.2019
Judgment on : 05.07.2019
JUDGMENT
Arindam Mukherjee, J.:
1) This Public Interest Litigation has been filed by ad advocate. The said advocate represented the defendant in a suit being C.S No.37 of 2008 (Abhishek Buchasia Vs. Mohan General Trading Company) filed in this Hon’ble Court. In the said suit, an application under Chapter XIIIA of the Original Side Rules of this Court being G.A No.1705 of 2008 was made. In the said application, directions for affidavit were given on 10th June, 2008.Subsequent thereto, an application being G.A No.2339 of 2008 was made for amendment of the plaint. The amendment was allowed by an order dated 22nd July, 2008 wherein the name of the petitioner appears as the advocate for the defendant. The application under Chapter XIIIA of the Original Side Rules of this Court was allowed by passing a decree in favour of the plaintiff in the sum of Rs.13,29,162 with an interest thereto @ 7% per annum from the date of the said order till payment. The plaintiff was also entitled to cost on account of the Court fees put in and a further sum of Rs.10,000/-. It will appear that the defendant whom the petitioner represented did not even file their affidavit in opposition in the Chapter XIIIA application despite there been directions for the same.
2) On 21st September, 2010, the petitioner representing the defendant applied to the Registrar, Original Side of this Court only for an urgent photostat certified copy of the order dated 21st September, 2010. There is no requisition for either drawing up and completion of the order or for the certified copy of such drawn up order.
3) The petitioner complains that the photostat certified copy of the order dated 21st September, 2010 was never provided to the petitioner or his client despite there being an application for the same. He further alleges that the said order was passed in a wrong cause title. The earlier two orders referred to hereinabove being respectively dated 10th June, 2008 and 22nd July, 2008 were passed by mentioning the name of the plaintiff as Abhishek Buchasia and Abhishek Bhuchasia respectively. The order dated 21st September, 2010 was passed by printing “Bhchasia” instead of Buchasia being the correct surname of the plaintiff as appears from the cause title of the plaint. He further submits that the typing error as to the surname of the plaintiff remained unnoticed to the petitioner and was noticed only on 14th August, 2015 in course of hearing of the execution application made by the plaintiff for executing the decree passed in the application under Chapter XIIIA of the Original Side of this Court.
4) It is also the case of the petitioner that the respondent No.1 (Registrar, Original Side of this Hon’ble Court) at the instance of respondent No.2 (plaintiff) showed undue haste in drawing up the decree by deliberately ignoring the fact that the judgment/order dated 21st September, 2010 was passed in favour of “Abhishek Bhchasia” and not in favour of “Abhishek Buchasia” being the plaintiff without seeking rectification of the same.
5) The petitioner, therefore, alleges laches on the part of the department of this Hon’ble Court in supplying the photostat certified copy of the order dated 21st September, 2010 which on the one hand prevented the petitioner’s former client from preferring an appeal therefrom, thereby causing grave injustice to his former clients i.e. the pro-forma respondent No.3 and 4 and on the other had also caused harm to the reputation of the petitioner in person as their erstwhile advocate on record. Moreover by drawing up the decree without having the typographical error in the surname of the plaintiff had allowed the plaintiff to put the said decree into execution.
6) In this background, the petitioner has prayed for the following orders:-
“i. A Writ of and/or in the nature of Mandamus do issue commanding the Respondent No.1, its men, agents and servants to act in accordance with lay by drawing up decree in compliance to the Notification of the Statutory Order 603 E, dated 06.06.2002, the Code of Civil Procedure, (Amendment) Act, 1999 (46 of 1999) vide section 31 (with effect from 01.07.2002, the word [judgment] substituted for ‘decree appealed from (unless the Appellate Court dispenses therewith) of the judgment on which it is founded’ is reflected in the statutory provisions of Order XL1 Rule 1(1) of the Code of Civil Procedure, 1908 and thus not draw up a decree prior to the making of the certified copy of the order and/ or;
ii. A Writ of and/ or in the nature of Mandamus do issue commanding the Respondent No.1, to conduct an enquiry into the circumstances leading to the non- issuance of certified copy of the solemn order dated September 21, 2010 passed in G.A. 1705 of 2008 in C. S. 37 of 2008, as well as the reasons for drawing up the decree by the Decree Department ignoring the conferred statutory right envisaged under Order XX Rule 6B of the Code of Civil Procedure, 1908 before drawing up of the decree under the statutory provisions of Order XX Rule 6A of the Code of Civil Procedure, 1908 and identify the persons involved and file an action taken report thereon against all concerned including Your Petitioner, if necessary and or;
iii. A Writ of and/ or in the nature of certiorari do issue directing the Respondent No.1 herein to produce all records including the Execution Case No.514 of 2011, and after perusing and hearing the parties thereto, to enable passing of orders as deemed fit and proper for conscionable justice being meted out to the Pro-forma Respondents Nos. 3 and 4 herein and/or;
iv. rule NISI in terms of prayers above;
v. An ad-interim order directing the Respondent No.1 herein to file a report bringing out the details of drawing up the decree dated September 21, 2010 in G.A No.1705 of 2008 in C.S 37 of 2008 without preparation and issuance of certified copy of the solemn order and/or;
vi. Any other appropriate writ, order and/or direction to which your petitioner is found entitled and/or;
vii. Pass such further order or orders as to Your Lordship may deem fit and proper”.
7) Before further going into the matter, one should mention that the defendant in the suit being C.S No.37 of 2008 is Mohan General Trading Company described as a mercantile firm. The petitioner claims that the pro-forma respondents No.3 and 4 are the persons affected. The pro-forma respondents No.3 and 4 may be the partners of the firm as contended by the petitioner and, therefore, may be liable for the acts of the firm including the effect of the decree but it is the firm, that may at best have been put into inconvenience being prevented from filing an appeal for non issuance of the photostat certified copy of the order. The firm would be at best the effected “person” when the pro-forma respondents are not even parties to the suit and not being served with the summons as per the provisions of Order XXX Rule 3 of the Code of Civil Procedure, 1908. In such situation the pro-forma respondents could not even be made parties in the petition i.e. the petition suffers from mis-joinder and non-joinder of parties. Moreover, in view of the allegation made in paragraph-5 of the petition to the effect “the harm of the reputation of the petitioner in person as their erstwhile advocate on record”, the Public Interest element is missing in the matter. It sounds more of the private dispute. The petitioner has attempted to make out a tortuous liability for which his remedy lies elsewhere and not in a Public Interest Litigation. However, without dismissing the petition on such grounds we intend to deal with the allegations made by the petitioner on merits.
8) In course of hearing of the petition, the Registrar, Original Side of this Court was directed by an order dated 3rd August, 2018 to file a comprehensive report regarding issuance of certified copy of the order dated September 21, 2010. The report says that for incorrect cause-title, the order dated 21st September, 2010 could not be drawn up and certified copy could not be issued. The petitioner has taken exception to the report of the Registrar, Original Side of this Court dated 13th August, 2018 by filing an application being G.A No.2442 of 2018. Since we are dealing with the merits of the main matter we are not separately dealing with the said application in as much as the issues involved therein are answered while we decide the main petition.
9) The Court while hearing an application under Chapter XIIIA of the Original Side rules of this Hon’ble Court can forthwith pronounce judgment in favour of the plaintiff unless good defence is shown by the defendant in terms of the Rule 6 of the Chapter XIIIA of the Original Side Rules of this Court. In the suit being C.S No.37 of 2008, this Court pronounced a judgement by the order dated 21st September, 2010 in favour of the plaintiff clearly indicating therein about the decree passed in favour of the plaintiff. In view of such pronouncement, a decree was required to be drawn up under the provisions of the Rule 1 of Chapter XVI of the Original Side of this Court and not an order as either a decree or an order can be drawn up out of a judgement and not both at a time. There is as such no separate existence of an order which is required to be drawn up and completed. It was the certified copy of the judgment which could have been issued, if applied for. The petitioner did not apply either for a certified copy or for a certified photostat certified copy of the judgement in terms of Chapter IV A of the Original Side Rules wherein “order” and judgement has been separately described. It will appear from the said petition that the erstwhile client of the petitioner did not also put in any requisition for drawing up and completion of either the decree or of the order through the petitioner. If the petitioner or his erstwhile advocate treated the order dated 21st September, 2010 to be an order then they ought to have given requisition for drawing up and completion of the order and applied for issuance of a certified copy thereof and would not have stopped only by applying for a photostat certified copy of the said order. The petitioner and his erstwhile client were, therefore, misguided from the very beginning. The application was only for a photostat certified copy of the order which has no separate existence in the facts and circumstances of the case and as such there is no failure on the part of the department in issuing a photostat certified copy of the order through the department is obliged to issue a certified copy when applied for. It further appears from the petition that the department of this Court while drawing up the decree has followed the relevant rules i.e. a draft copy of the decree was sent to the petitioner with a date indicated therein for drawing up the decree. It is an admitted position as will appear from paragraph-9 of the said petition that Suman Basuan advocate and a junior to the petitioner had appeared before the concerned officer while the draft decree was settled.
10) The only point which has been raised by the petitioner regarding the drawing up of the decree that too after receiving the report of the Registrar by way of exception that the plaintiff did not put in the requisition for drawing up and completion of the decree within 3 days as provided under Rule 27 of Chapter XVI of the Original Side Rules of this Court. This point has been clearly answered in the report. There was a strike in the department between 22nd September, 2010 to 24th September, 2010 and as such the requisition was accepted on 30th September, 2010. Excluding the strike period the requisition was in time. We accept such position as it may be at the most an irregularity and not illegality which vitiates the decree. The typographical error in the surname of the plaintiff in the short cause title of the order dated 21st September, 2010 was not an impediment in drawing up and completion of the decree as the said decree was drawn on the basis of the long cause title of the suit which is in any event correct. On the decree being drawn up correctly, the same was put into execution by the plaintiff in C.S No.37 of 2008 as he was entitled to do so. We, therefore, find that there has been no fault or laches on the part of the department while it proceeded to draw up the decree and in drawing up and completing the decree. The department could not have drawn up an order in terms of the judgment dated 21st September, 2010 in as much as the same is a decree. Thus, the question of supplying a photostat certified copy of the order in terms of the judgment dated 21st September, 2010 cannot and did not arise in the facts of the case particularly when there was no application for issuance of the certified copy of the judgement made by the petitioner or his erstwhile client under the provision of Chapter XVI Rule 27 of the Original Side Rules of this Court. The petitioner as the erstwhile advocate of the defendant ought to have applied for the certified copy of the judgement and put in requisition for drawing up and completion of the decree in terms of rule 2 and 3 of Chapter XVI and Rule 27 of Chapter XVI of the Original Side of this Court in as much as the decree was required to be drawn up in terms of the Rule 1 of the Chapter XVI. The department, therefore, has correctly proceeded to draw up and complete the decree. Even going by the definition of section 2(2), 2(9) and 2(14) of the Code of Civil Procedure, 1908 only a decree could have been drawn up in terms of the judgment pronounced on 21st September, 2010 in view of the specific provisions of Rule 1 of Chapter XVI of the Original Side of this Court. Moreover only an appeal from decree can be preferred from a summary judgement allowing a Chapter XIIIA application either partly or in while and no appeal from order lies therefrom.
11) Now coming to the allegation as to the erstwhile client of the petitioner having been deprived from preferring an appeal in absence of the certified copy of the order dated 21st September, 2010 we find the same to be devoid of substance and thoroughly misconceived. In order to prefer an appeal, since it was a decree which was passed on 21st September, 2010, the form of the memorandum provided in the Rule 2 of Chapter XXXI the appellant was required to be prefer was an appeal from decree and not from an order. The memorandum of appeal, in such a case was required to be accompanied with a copy of the decree appealed from or a certified photostat copy thereof along with a copy of requisition submitted for drawing up and completion of the decree. The petitioner never applied for photostat copy of the decree or of the judgement and as such the question of preferring an appeal with a copy of the decree or a photostat certified copy of the judgement accompanying the same does not arise. The petitioner’s erstwhile client could not have otherwise preferred an appeal as in that event along with the certified copy of the judgement the requisition for drawing up and completion of the decree was required to be attached with the memorandum of appeal. The petitioner’s erstwhile client could not have produced such requisition as there is none, nor they had applied for a certified copy or photostat certified copy of the decree.
12) In any event, if the petitioner’s erstwhile client was eager in preferring an appeal, they could have approached the Division Bench having jurisdiction to obtain leave to prefer an appeal without the certified copy of the decree or of the order on the basis of the usual undertaking. The normal procedure followed in this Court is that, leave to file an appeal without the certified copy of the decree order is granted. In such a situation the appeal on being filed would have appeared before the Bench having jurisdiction. The order dated 21st September, 2010 was available in the official website of this Court and as such the petitioner’s erstwhile client, if was eager to file an appeal could have done so either by obtaining leave from this Court by annexing such website copy or could have presented the memorandum of appeal before the Registrar, Original Side of this Court. If the memorandum of appeal was rejected by the said Registrar in terms of Rule 3 and 4 of Chapter XXXI of the Original Side Rules, the petitioner’s erstwhile client could have applied for admission of the rejected memorandum in terms of Rule 5 of the said Chapter. At the best, if the petitioner’s erstwhile client preferred an appeal with the website copy, the appeal in view of the typographical error in the plaintiff’s surname would have been a defective one and could have been rectified subsequently.
13) It is also an admitted position that the typographical error in the plaintiff’s surname was noticed about 5 years from passing the order dates 21st September, 2010, and as such the typographical error could not have been the reason for non filing of the appeal. Neither the petitioner as the erstwhile advocate of his client nor the said erstwhile client of the petitioner opted for any of the courses as aforesaid which were available to them to prefer an appeal. Neither of them brought the fact of non supply of the photostat certified copy of the order which the petitioner no alleges to the notice of the Court when the same was not issued after a reasonable period of time. In absence of such effort, the only conclusion that can be arrived at is that the erstwhile client of the petitioner was never interested in preferring an appeal and was watching from the wings for which there was no requisition for drawing up and completion of either the decree or the order was made, neither was there any application for issuance of the certified copy of the Judgement nor for issuance of the photostat certified copy of the judgement. There was also no requisition for issuance of the certified copy of the order as issuance of photostat certified copy of the order does not give away with the drawing up and completion of the said order or issuance of the certified copy thereof to be included in the paper book in case of an appeal from order. Only at the execution stage the defendant desperately wanted an avenue to resist the execution and delay the same. The plea raised by petitioner is nothing but a dilatory tactics adopted by his erstwhile client.
14) It also appears from the record that prior to filing of the Public Interest Litigation, which was affirmed 14th June, 2017,the erstwhile client of the petitioner preferred an appeal from the order passed in execution. In an order passed in the said appeal being APOT 416 of 2016 on 17th January, 2017, it was recorded that the parties were attempting to settle the dispute.Records also reveal that the petition was representing his erstwhile client even on 3rd February, 2017. Records further reveal that in the execution proceedings the erstwhile client of the petitioner was directed to deposit Rs.22 lakhs which sum on being deposited was also released to the plaintiff in terms of the order dated 24th November, 2017. This also leads to the presumption that after being unsuccessful in either resisting the execution or delaying the same on the ground that there was typographical error in the surname of the plaintiff in order dated 21st September, 2010,the petitioner has retired from the matter and is espousing the cause of his erstwhile client by the instant Public Interest Litigation. The petition, therefore, clearly lacks the Public Interest element in it for the reasons as aforesaid.
15) That apart and in any event, this High Court is a chartered High Court and as such the provisions of the Code of Civil Procedure, 1908 is not application to the Original Side suits as provided in section 120 of the said Code. The form of memorandum and the documents accompanying the same in respect of an appeal from judgments of first stance in the Original Side of this Court i.e. appeals to a Division Bench is clearly specified in Rule 2 of Chapter XXXI of the Original Side Rules of this Court which has been framed in terms of Clause 37 of the Letters Patent being applicable to this Court. The said Rule says that “a copy of the decree or order appealed from or a certified Photostat copy thereof along with a copy of the requisition submitted for drawing up and completion of the decree or order, as the case may be” should accompany the memorandum of appeal. The said Rule does not provide for the “judgment” to accompany the memorandum of appeal as provided in Order 41 Rule 1 of the Code of Civil Procedure, 1908 after its amendment in 1999. Unless there is a specific amendment in Rule 2 of Chapter XXXI of the Original Side Rules of this Court by including therein that an appeal can be preferred by filing a memorandum of appeal with a copy of the “judgement” only the memorandum of appeal should accompany the documents as specified thereunder and not a copy “judgment” as provided in Order 41 Rule 1 of the Code of Civil Procedure, 1908. It is also no more res integra that in case of a conflict between the Letters Patent and Original Side Rules of this Court framed under Clause 37 thereof on one hand and the Code of the Civil Procedure, 1908, on the other, the Rules of this Court will prevail. One may refer to the judgments reported in 2006 (3) CHN 451 [Howrah Motor Company Ltd. Vs. Exide Industries Ltd.] and 2005 (2) SCC 145 [Iridium India Telecom Ltd. Vs. Motorola Inc] in this context. We are also convinced that the erstwhile client of the petitioner if at all has suffered any prejudice is due to their conduct which may be due to ill advice. We are also required to strike a balance at one stage or the other. Leaving aside everything the plaintiff/respondent No.2has got a decree in his favour and is entitled to the fruits thereof. At the instance of the petitioner on unmeritorious grounds we should not open the appeal proceedings in favour of his erstwhile client to the prejudice of the plaintiff/respondent No.2 when the conduct of the petitioner’s erstwhile clients are deplorable. At the same time we direct the registry and the departments of this Court to promptly deal with any requisition for a certified copy or the photostat certified copy and inform the concerned advocate who has applied for the same about any defect in such requisition, if the same is found defective.
16) In the light of the discussions made hereinabove, the prayers made by the petitioner are thoroughly misconceived. We have minutely gone through the following judgements cited by the petitioner and have found that none of them has any application in the facts and circumstances of the instant case though there is no dispute as to the ratio laid down therein :-
(1) (2000) 2 Supreme Court Cases 465 [Railway Board – Vs – Chandrima Das].
(2) (1976) 3 Supreme Court Cases 607 [Union of India – Vs – Jyoti Chit Fund and Finance and Others].
(3) (2004) 3 Supreme Court Cases 349 [Ashok Kumar Pandey – Vs – State of West Bengal].
(4) Ch. 1995 C. No.7494 [chancery Division] [In re: Charlesworth Vs. Relay Roads and Others].
(5) (2005) 1 Supreme Court Cases 608 [Sunita Devi Vs. State of Bihar].
(6) AIR 1966 SC 1631 [In Re: Jang Singh Vs. Briji Lal].
17) The writ petition along with G.A No.2442 of 2018 are, therefore, liable to be dismissed and are accordingly dismissed. Since the petitioner is an advocate and we have held that the petition lacks Public Interest element in it and the prayers made by the petitioner being misconceived, we impose a token cost of 100 GMs on the petitioner which shall be deposited with the State Legal Services Authority, West Bengal, within a period of fortnight from date. List this matter on 22nd July, 2019, only for the purpose of ascertaining payment of cost in terms of this order.
The petition is, therefore, dismissed with cost as aforesaid. Urgent photostat certified copy of this judgment and order, if applied for, be supplied to the parties on priority basis.
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LATER After the judgment is pronounced in Court, the petitioner prays for stay of the judgment and order, which is considered and refused.
(ARINDAM MUKHERJEE, J.)
(BISWANATH SOMADDER, J.)