IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.11 of 2007 AMAR CHAND SARAOGI Versus LALMATI DEVI & ORS with C.R. No.1209 of 2007 NITYANAND MISHRA Versus SHAIL DEVI & others with C.R. No.1320 of 2007 KHURSHID AHMAD @ KHURPEED AHMAD Versus BIBI SHAMIMA KHATOON @ SHAMIMA Khatoon & others with C.R. No.970 of 2008 SACHIDANAND PRASAD Versus M/S JYOTIRMOY SAHKARI GRIH NIRMAN SAMITI LTD & ORS with C.R. No.1758 of 2009 BUNELA RAM & ANR. Versus HASIB MIYAN & ORS. with C.R. No.374 of 2010 ARJUN PRASAD Versus SMT. KIRAN KUMARI & ANR. with C.R. No.756 of 2010 MOHAN PRASAD Versus AWADH BIHARI PRASAD @ VIJAY KUMAR with C.R. No.770 of 2010 SANTOSH KUMAR DAS Versus THE STATE OF BIHAR & ANR. ----------- 15 10.03.2011 All these applications were originally filed under section 115 of Code of Civil Procedure and were registered as Civil Revision applications, after complying the procedures prescribed under Chapter III and IIIA of the Patna High Court 2 Rules (in short Rules). However, in view of the law laid down by the Apex Court in the case of Shiv Shakti Co-operative Housing Society, Nagpur Vs. Swaraj Developers and Ors, reported in (2003) 6 SCC 659, and Suryadeo Rai Vs. Ramchander Rai and Ors, reported in (2003) 6 SCC 675 as also in view of a Division Bench judgment of this court in the case of Durga Devi Vs. Vijay Kumar Poddar, reported in 2010 (2) PLJR 954, all the civil revision applications, by separate orders passed in each of the proceeding separately, were held to be not maintainable, but liberty was granted to the petitioner(s) to convert all the civil revision applications into writ petitions under Article 227 of the Constitution of India. In compliance of those separate orders, learned counsels appearing on behalf of the petitioner(s) in each of the cases have converted these civil revision applications into writ petitions under Article 227 of the Constitution of India by making necessary correction in the original petition filed as Civil Revision application. 2. After such conversion, all these applications were placed before the Designated Officer of the Centralized Filing Counter for the stamp report in terms of Rule 1 of Chapter IIIA of the Rules. Designated Officer of the Centralized Filing Counter has pointed out certain defects in each of the petitions and therefore, all these matters have been placed under the heading FOR ORDERS (ON OFFICE NOTES). 3. Learned counsel appearing on behalf of the petitioners 3 in each of the cases, though have shown their willingness to remove the defects pointed out by the Designated Officer of the Centralized Filing Counter, but in one voice, they have raised a common grievance about the listing of these matters as civil revision applications. They are unanimous in their submissions that once by a judicial order the civil revision application was held to be not maintainable and in view of liberty granted by the court, the said civil revision application was converted into a writ petition under Article 227 of the Constitution of India, then the application originally filed ceases to be civil revision application and ought to have been registered as writ petition under Article 227 of the Constitution of India without awaiting compliance of the procedure once again prescribed under Chapter IIIA of the Rules. According to them, after conversion of the civil revision application into writ petition under Article 227 of the Constitution of India by virtue of judicial order passed in each of the proceeding separately, the same should have been registered as writ petition by allotting separate C.W.J.C. number and could have been placed before writ court dealing with such matters, for removal of the defects pointed out by the Designated Officer of the Centralized Filing Counter. 4. In order to appreciate the points raised, it would be essential do delineate the relevant provisions of Rules. Chapter III of the Rules deals with the general rules regarding applications and affidavits. The manner and mode for presenting 4 an application and affidavit before the Patna High Court have been delineated in the aforesaid chapter. Chapter IIIA of the Rules lays down the procedure for filing of applications, petitions, memos of appeal, as also the affidavits. Rule 5 of Chapter IIIA of the Rules prescribes that all filings shall be noted in the computer as well as in the register maintained for the purpose under the supervision of the Designated Officer. Rule 6 of Chapter IIIA prescribes that after such entry the designated officer either himself or though office staff under his supervision shall get such application, petition or memo of appeal checked with respect to different requirements as indicated in that rule. Rule 7 of the Chapter IIIA of the Rules provides that the filing shall be returned to the person presenting the same with intimation regarding defects pointed out under Rule 6 and such application, petition or memo of appeal may be re-filed within seven days, after removing the defects. Rule 9 and 10 of Chapter IIIA of the Rules provide that defect free applications, petitions, memos of appeal etc. shall be numbered under the respective heads of the cases and thereafter same shall be sent to the concerned section for being listed before the Bench. 5. In the present case, all these applications, originally filed as civil revision applications, had to undergo tests/procedures prescribed under Chapter IIIA of the Rules. All the applications were originally presented before the designated 5 officer, defects were pointed out by the stamp reporter, and same having been removed by the lawyer concerned and after having become defect free, were registered as civil revision applications. 6. Now a question arises that once applications, petitions and memos of appeal etc. are presented before the High Court and after fulfilling the requirements under Chapter III and IIIA of the Rules and after having become defect free and after allotment of number under the respective heads of cases, if such applications, petitions and memos of appeal are held to be not maintainable, for whatever reasons, and are permitted to be converted under different head of cases/appeals by some judicial order of this Court, then whether such applications, petitions or memos of appeal etc. are required to complete the procedure prescribed under Chapter III A of the Rules once again for being registered as the case/appeal and for allotment of number on conversion, or such applications, petitions or memos of appeal etc. are required to be immediately registered by allotting a number of the case/appeal, as per judicial order, and only thereafter requirement of removal of certain defects can be directed to be carried out under the changed head of case /appeal. 7. In the considered opinion of this court, in view of its non-maintainability, once a judicial order was passed for conversion of the civil revision application into a writ petition 6 under Article 227 of the Constitution of India and once the aforesaid order was carried out by the learned counsel appearing for the petitioner(s), then the registry of this court was/is required to register the same as writ case by allotting separate CWJC number without waiting for the formalities for complying the procedure once again prescribed under Chapter IIIA of the Rules. By not immediately registering these applications as writ case by allotting separate CWJC number and by treating these applications still as civil revision applications, an anomalous situation would arise in the following circumstances:- (a) Suppose a peremptory order is passed for complying the defects pointed out by the Designated Officer of the Centralized Filing Counter and defects are not removed within the time prescribed by this court, then question would arise, which petition would be treated to have been dismissed? Apparently, civil revision application, as originally filed was held to be not maintainable and was permitted to be converted into writ petition by a judicial order, and after such conversion, aforesaid application ceases to be a civil revision application and therefore, for non compliance of peremptory order passed by this court, civil revision application cannot be treated to have been dismissed, as it had already been held to be not maintainable. Furthermore, despite judicial order, the civil revision application as originally filed, after conversion, was not yet registered as writ case and separate C.W.J.C. number is yet to be allotted, 7 therefore, the writ petition cannot be said to have been dismissed for non compliance of the peremptory order. (b) There is yet another problem. After judicial order for conversion of the civil revision application into writ petition under Article 227 of the Constitution of India and after order having been complied with by the learned counsel for the petitioner, if the case is not immediately registered as a writ case by giving CWJC number under Chapter IIIA of the Rules, then suppose the petitioner wants to withdraw the application (as it has happened at least in one case), then question arises, which petition shall be permitted to be withdrawn. Apparently, civil revision application would no longer be in existence, after judicial order having been passed for its conversion and same having been complied with. Therefore, civil revision application can not be permitted to be withdrawn, as it has ceased to remain as civil revision case. Admittedly, despite the aforesaid judicial order for conversion, case has not been registered as writ case by giving separate civil writ jurisdiction case number. Therefore, writ petition cannot be permitted to be withdrawn on the request, as it is yet to take birth. (c.) In a case like this, since the petition was originally registered as civil revision application, after undergoing all the procedure prescribed under Chapter IIIA of the Rules, therefore, same cannot be returned to the lawyer of the petitioner for removal of the defects, as pointed out by the Designated Officer 8 of the Centralized Filing Counter in terms of Rule 7 of the Rules. If such petitions are returned to the lawyer concerned for removal of the defects, in a hypothetical case, if such petitions are not re-filed after removal of the defects, then it may be a case of misplacement of record or a case of missing record and in that situation, the dealing staff may have to be unnecessarily held responsible for misplacement or missing of the record. 8. These are really anomalous situations and are required to be redressed by interpreting Chapter IIIA of the Rules in its proper perspective. From the tenor of rule 9 of Chapter IIIA of the Rules, it is apparent that the said rule is not mandatory rather directory in nature, as certain exceptions are already indicated in that rule itself. 9. In order to avoid anomalous situations, referred to above, I am of the considered opinion that after a judicial order is passed for whatever reasons, with respect to applications, petitions, memos of appeal etc. for its conversion and if such a judicial order is complied with by the lawyer concerned, then the case/appeal has to be registered immediately as per the judicial order passed in the proceeding as originally filed, without waiting for compliance of all the procedures once again prescribed in Chapter IIIA of Rules. 10. For the reasons recorded above, all these applications are directed to be registered forthwith as writ petitions by giving separate CWJC number and thereafter, defects pointed out by 9 the Designated Officer in terms of rule 6 of Chapter IIIA of the Rules may be placed for consideration before the appropriate writ court, and not before the court dealing with the civil revision application. Henceforth, all such civil revision applications, which have been held to be not maintainable and having been permitted to be converted into writ petition under Article 227 of the Constitution of India by some judicial order of this court, shall be forthwith registered as writ case by giving separate CWJC number and shall be placed before the concerned writ court for removal of such defect. 11. Let this order be communicated to all concerned, for its due observance and compliance in future in all such matters. 12. Let all these cases go out of my Board for being registered as writ case by allotting separate C.W.J.C. number and for being listed before an appropriate Bench dealing with such writ matters, after obtaining necessary permission from Hon’ble the Chief Justice. Rahman/ ( Birendra Prasad Verma, J.)