IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 R.P.No.332 of 2011 ------------------------------- AGAINST THE ORDER IN I.A.NO.872 OF 2010 IN W.A.NO.640/2009 DATED 15.11.2010 .................... REVIEW PETITIONER/PETITIONER/APPELLANT:- ---------------------------------------------------------------------- ADV.RANI JOY, D/O.AUGUSTINE JOSEPH, AGED 66 YEARS, RESIDING AT 28/3227, 1ST CROSS, CHERUPARAMBATH ROAD, KADAVANTHRA, COCHIN-20. BY ADV. SRI.N.D.JOY RESPONDENTS:- ------------------------ 1. Dr.JESS RAPHEAL, PAVANATHARA HOUSE, MOTHER THERESA ROAD, EDAPPALLY, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 07/04/2011, THE COURT ON 12/04/2011 PASSED THE FOLLOWING:- J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. --------------------------------------------------------------------------- Review Petition No.332 of 2011 --------------------------------------------------------------------------- Dated this the 12th day of April, 2011 ORDER J.Chelameswar, C.J. W.A.No.640 of 2009 was dismissed by judgment of this Court dated 25th March, 2009, by a Division Bench of Justice P.R.Raman (since retired) and Justice P.S.Gopinathan. 2. Not satisfied with the judgment in the Writ Appeal, No.640 of 2009, the applicant herein filed a Review Petition, No.389 of 2009, against the said judgment. The matter was considered by the same Division Bench which dismissed the Writ Appeal, and by order dated 7th April, 2009 dismissed the review petition. 3. Subsequently, I.A.No.872 of 2010 came to be filed in the above mentioned Writ Appeal which had already been disposed of. The above mentioned I.A. was filed with the prayers as follows: “(a) Directing to treat the Annex.A3(a) and A3(b) judgment and decree in OS No.1148/95 dated 17.03.2009 a nullity, leaving aside even oral evidence in I.A.No.5597/2010 in OS No.1148/95 in enforcing the order No.168215 dated 11.02.1997 (Annex.A1) of the Hon'ble Supreme Court of India (Also refer 1994 (1) SCC). If the relief is refused by documentary evidence, oral evidence may be ordered to dispose of I.A.No.5597/2010 in OS No.1148/95 in a stipulated period. R.P.No.332 of 2011 - 2 - (b) Direct the 1st Addl. Sub Court, Ernakulam to file a complaint against the 1st respondent, Jess Raphael for playing a fraud upon the court and disobedience of the order No.168215 dated 11.02.97 in Crl.Appeal No.2372 of 1995 before the Hon'ble Supreme Court of India (Annex.A1) u/s 340 read with Sec.195 of Cr.PC. (c) Set aside the impugned common order Annex.A6) dated 20.10.2010 in I.A.No.1062/09, IA.No.5597/10 and IA No.5598/10 in OS No.1148/95, before the 1st Addl. Sub Court, Ernakulam being arbitrary, against the natural justice, discriminatory and illegal. (d) Grant a direction to record oral evidence of the petitioner in Crl.MP No.1062/09 (Annex.A8(a) dated 05.02.2009 for the meaningful disposal, as directed in WA No.640/09 by the Hon'ble Division Bench in the interest of justice”. Such an Interlocutory Application was filed on 3.11.2010, by which date one of the Judges who heard and dismissed W.A.No.640 of 2009, i.e. Sri.Justice P.R.Raman, retired from service. In view of the factum of retirement of Justice Raman, I.A.No.872 of 2010 was initially listed before the Division Bench of Justice Pius C.Kuriakose and Justice P.S.Gopinathan, obviously because Justice P.S.Gopinathan was a member of the Division Bench which dismissed the Writ Appeal. When the I.A. was taken up on 10.11.2010, the Division Bench recorded as follows: R.P.No.332 of 2011 - 3 - “This I.A. is not an application seeking review of the judgment in the Writ Appeal. Instead, it is only an interlocutory application seeking reliefs in the Writ Appeal which is already disposed of. The Registry will post the I.A. according to the present roster at the earliest”. 4. Subsequently, the said I.A. came to be listed before this Division Bench on 15.11.2010. This Division Bench dismissed the I.A. by order dated 15.11.2010. 5. Not satisfied with the said order, the appellant in the above mentioned Writ Appeal presented the present review application with a prayer as follows: “For these and other grounds to be urged at the time of hearing, it is humbly prayed that this Honourable Court may be pleased to cancel the order dated 15.11.2010 by the same honourable Judges or conversion before the competent Division Bench and heard I.A.No.872/2010 where Justice P.S.Gopinathan is an integral part”. When such a petition is filed, the Registry pointed out various defects as follows: “1. I.A.Nos. (I.A. in Crl.M.P.) shown is incorrect. 2. Stamps not affixed in Re-presentation delay petition. R.P.No.332 of 2011 - 4 - 3. Please clarify whether R.P. Can be filed to cancel the order dated 15/11/10 and praying conversion before another Bench. 4. Petition not filed along with affidavit (Item No.4)”. Apart from the various procedural shortcomings, the Registry sought a clarification whether the “Review Petition” as presented with the prayer to cancel an earlier order of this Court dated 15.11.2010 is maintainable. The Review Petition was re-presented with a delay of 74 days along with an application to condone such delay with the following endorsement by the learned counsel for the petitioner: “1. I.A. is the petition for condonation of delay (page 20). 2. Stamp Rs.10/- produced. 3. There is a jurisdictional error to hear IA No.872/2010 and hence the order dt.15/11/2010. Kindly refer to grounds A & D. The suggested relief is cancel the order dt.15-11-2010 and post before a DB consisting of J. P.S.Gopinathan is an integral part. 4. The petition is the RP and the affidavit in page 13 to 15. Defects cured, Sd/- 4/4.” Thereafter, the Registry listed the matter before this Bench with a Note as follows: “Kindly see the defects noted on pre-page and answer given by the Counsel. Counsel has filed this review petition to review the order in IA 872/2010 in WA 640/09. But he has shown the nomenclature as R.P.No.332 of 2011 - 5 - IA (Crl.MP 872/10) in IA (Crl.MP 1062/09) in WA 640/09. The prayer in the IA is to cancel the order dated 15.11.2010 in IA 872/10 or post the IA before the DB consisting of Hon'ble Mr.Justice P.S.Gopinahtan. In this connection it is submitted that only in Review Petitions, the rule clearly states that where the Judge or Judges or any one of the Judges who passed the decree or order for which a review is applied for continues, or continue attached to the court at the time when the application for review is presented such Judge or Judges shall hear the application. In this connection it is further submitted that the IA 872/10 was posted before the Hon'ble Court consisting of Hon'ble The Chief Justice and Hon'ble Mr.Justice P.R.Ramachandra Menon, since the Hon'ble Bench consisting of Hon'ble Mr.Justice P.S.Gopinathan had held that IA 872/10 is not an application seeking review of the Judgment in the Writ Appeal. Instead it is only an Interlocutory application seeking reliefs in the Writ Appeal which is already disposed of. So the Hon'ble Court directed the registry to post the I.A. as per roster. The contention of the Counsel that as per order in IA 737/06 in WA 653/06 there is a bar on the Hon'ble Judges hearing a petition in a Writ Appeal which is disposed of also seems incorrect. Kindly see the copy of order in IA 737/06 in WA 653/06 placed herewith. As per the decision an application for extension of time may be posted before Division Bench in which one of the Hon'ble Judges (who was a member of the D.B. which passed the order/Judgment sought to be extended) is a member. The IA 872/10 filed by Advocate N.D.Joy was for granting directions to the 1st Addl. Sub Court, Ernakulam. R.P.No.332 of 2011 - 6 - It is also submitted that certain pleadings made by the counsel in this RP is in contrary to the decision in ILR 2007 (1) page 753 (copy placed herewith). Kindly see the pleadings para 3(a) of memorandum of Review petition, paragraph 4(b), 7(d) and para 8 of the memorandum of Review Petition. Hence in view of the above defects, it may be considered whether this RP in IA 872/10 in WA 640/09 may be numbered”. 6. The substantial objection of the Registry is that the petition such as the one styled as a petition seeking review of an order in I.A.No.872 of 2010 dated 15th November, 2010 is not maintainable. We are in total agreement with the view taken by the Registry. We are of the opinion that the instant application is not only not maintainable, but also is a vexatious proceedings and an abuse of the process of this Court. Sri.N.D.Joy, the counsel for the petitioner/appellant in W.A.No.640 of 2009 (who is none other than the husband of the writ appellant), pointed out to the order dated 27th June, 2006 of a Division Bench of this Court in I.A.No.737 of 2006 in W.A.No.653 of 2006 in an effort to justify the petition such as the one filed by him. It was a case where the I.A. was filed seeking the extension of time for complying with the directions issued by the R.P.No.332 of 2011 - 7 - Court in the Writ Appeal. In dealing with such an application, a Division Bench of this Court opined that such applications are required to be posted before the same Bench which issued the directions. The relevant portion of the order reads as follows: “In our considered view, the application for extension of time pertaining to time bound orders need to be placed before the same Bench which may have passed such orders. The Bench which heard the matter earlier and gave time bound direction would better know as to in what circumstances the time for complying the direction was mentioned and whether there were justifiable reasons for extending the same. We thus order that matters, as of the one in hand, must be placed before the same bench if in position as per the roster or else atleast to such Bench where one of the Honourable Judges constituting the earlier Division Bench is a member. If, however, both the Honourable Judges may, as per the current roster be transacting matters meant for Single Bench, the office will constitute a special Bench”. It may be noticed from the above extracted portion of the order that the Division Bench did not lay down any universal principle of law applicable to all kinds of applications. Such an order came to be passed, as can be seen from the order, as the Division Bench opined that the same Bench which passed the original order would be able to better appreciate the situation and justification or lack of it for extension of time. Assuming for the sake of argument that there is R.P.No.332 of 2011 - 8 - some justification for listing I.A.No.872 of 2010 before a Bench to which Justice P.S.Gopinathan is a member, it has already noticed that the matter was earlier listed before a Bench of which Justice P.S.Gopinathan was a member and the Bench opined, by a judicial order, that there was no need to consider the said I.A. to which Justice P.S.Gopinathan was a member. Thereafter the matter was listed in accordance with the roster before this Division Bench. When the matter was taken up by this Bench on 15th November, 2010, there was not even a whisper by the petitioner about any “irregularity or impropriety” in the hearing of I.A.No.872 of 2010 by this Bench. It is only after the above mentioned I.A. was dismissed by this Bench, the applicant now invents grounds to point out “incompetence” of the Bench. We assume liberally in favour of the applicant that what he meant by incompetence is lack of jurisdiction in this Bench. Apart from that, the language of the application is highly intemperate: “On 11.11.2010 the said I.A.872/10 was posted before JJ (CNR) and BP RAY. It is as a result of incorrect administrative order at the Dais, in a whispering language. xx xx xx Because of the hurried order dated 15.11.2010 initiated by honourable Justice Ramachandra Menon in a wrong combination R.P.No.332 of 2011 - 9 - of honourable judges, they have not applied their mind into the principles laid down in 1994 (1) SCC that when fraud is played upon in the court, the matter can be heard by any court, at any time including the apex court and during collateral proceedings. This is because of the jurisdictional error committed by the Honourable CJ and J PRRM”; We do not wish to examine the question whether such pleadings are protected by the Advocates' licence. We are only sorry for the state of affairs. The Review Petition stands dismissed with exemplary costs, quantified at `25,000/- (Rupees twenty five thousand only), which shall be paid to the High Court Legal Services Committee within four weeks from today. If there is any default in the payment of cost as ordered above, the Secretary of the Committee shall take appropriate necessary steps for recovering the said amount. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vku/-