SURESH G. RAMNANI versus AURELIA ANA DE PIEDADE MIRANDA @ ARIYA ALVARES (DEAD THR. LRS) & ORS.
[2022] 10 S.C.R. 69, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SURESH G. RAMNANI
v.
AURELIA ANA DE PIEDADE MIRANDA @ ARIYA
ALVARES (DEAD THR. LRS) & ORS.
(Civil Appeal No. 8293 of 2022)
NOVEMBER 10, 2022
[ANIRUDDHA BOSE AND VIKRAM NATH, JJ.]
Judicial propriety: Application seeking hearing of review by
a particular judge – Matter to be placed on the administrative side
or order to be passed on judicial side – Held: Once an application
was preferred by any of the parties that a review may be heard by
the Judge who had decided the matter and had passed the order
from which the review arose, the matter ought to have been placed
before the Chief Justice on the administrative side rather than order
being passed on the judicial side – Proviso to r. 3(1) of Chapter
XXX of the Rules confers power on the Chief Justice to assign a
particular matter to a Single Judge for hearing of the review
application where the Single Judge concerned was not available
for the time being by reason of being on leave or otherwise where
he had ceased to sit at a particular Bench – Chief Justice, being the
master of roster and being conferred with specific powers of
assigning review petitions in given circumstances under the Rules –
On facts, the Single Judge ought not to have dealt with the
application but should have referred the matter to be placed before
the Chief Justice – In view thereof, direction to the Registry of the
High Court to place the application on the administrative side before
the Hon’ble Chief Justice for appropriate orders –
Bombay High
Court Rules – Chapter XXX, r 3(1) – Code of Civil Procedure, 1908
– Ord. 47 r. 5.
Malthesh Gudda Pooja v. State of Karnataka (2011)
15 SCC 330; Goel Ganga Developers India Pvt. Ltd. v.
Union of India through Secretary Ministry of
Environment and Forests and others (2018) 18 SCC
257; Maharashtra Housing & Development Authority
v. P V Anturkar (2009) 3 Mh Lj 266; Ratanlal Nahata
v. Nandita Bose (1998) 3 CALLT 348 HC – referred
to.
[2022] 10 S.C.R. 69
69
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[2022] 10 S.C.R.
Case Law Reference
(2011) 15 SCC 330
referred to
Para 13
(2018) 18 SCC 257
referred to
Para 13
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8293
of 2022.
From the Judgment and Order dated 16.07.2019 of the High Court
of Bombay at Goa in Misc. Civil Application No.526 of 2019 in Civil
Application (Review) No.7 of 2019 in Second Appeal No. 98 of 2013.
Huzafa Ahmed, Sr. Adv., Aman Vachher, Dhiraj, Ashutosh Dubey,
Mrs. Anshu Vachher, Abhishek Chauhan, Akshat Vachher, M/s Vachher
and Agrud, Advs. for the Appellant.
Nakul Dewan, Sr. Adv. and Chirag M. Shroff, Adv. for the
Respondents.
The Judgment of the Court was delivered by
VIKRAM NATH, J.
Leave granted.
2. This is defendant’s appeal assailing the correctness of the order
dated 16.07.2019 passed by Justice Prithviraj K. Chavan, rejecting the
Misc. Civil Application No.526 of 2019 in Civil Application (Review)
No.7 of 2019. The order reads as under:
“Heard Mr. M. Amonkar, learned Advocate for the applicant.
2. In view of the clause (3) of Chapter 13 of the Bombay High
Court Appellate Side Rules prayer (a) of the application cannot
be granted.
3. Mr. N. Fernandes, learned Counsel submits that matter be placed
after 5th October, 2019.
4. At his request, stand over to 07.10.2019’’
3. A bare reading of the impugned order extracted above would
raise a hundred doubts in the mind as to why this petition has been filed.
However trivial, we may consider the issue at hand, but
considering the
seriousness and the length of arguments advanced by the learned Senior
Counsels, we were compelled to reserve the judgment and give a serious
thought to the issue.
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FACTS
4. The respondent instituted a suit on 11.01.1985 for declaration
and permanent injunction registered as Regular Suit No.21 of 1985 in
the court of Civil Judge, Junior Division, at Margao titled “Mrs. Aurelia
Ana da Piedade Miranda Araujo Alvares and others vs. Mr. Gobindram
Jethanand Ramnani and others”. After the contest, the Trial Court decreed
the suit vide judgment and order dated 26.08.2003. The appellant preferred
an appeal under section 96 of Code of Civil Procedure, 19081, in the
court of District Judge at Margao, Goa, registered as Regular Civil Appeal
No.83 of 2013, titled “Mr. Suresh G. Ramnani Vs. Mrs. Aurelia Ana da
Piedade Miranda alias Araiyo Alvares and others”. This appeal initially
came to be dismissed vide judgment and order dated 22.04.2008. The
second appeal under section 100 CPC was preferred by the appellant
which came to be allowed vide judgment and order dated 02.03.2012.
The High Court remanded the matter to the First Appellate Court for a
fresh decision. After remand the first appeal was again dismissed vide
judgment and order dated 09.07.2012.
5. Aggrieved by the same, Second Appeal No.98 of 2013 was
preferred by the appellant in the High Court of Bombay at Panaji, Goa,
titled “Mr. Suresh G. Ramnani vs. Mrs. Aurelia Ana da Piedade Miranda
alias Araiyo Alvares and others”. In the second appeal judgment was
reserved by Justice G.S. Patel vide order dated 10.12.2017. It would be
relevant to note that Justice Patel at the
relevant time was sitting at the
Goa Bench of the Bombay High Court.
6. To complete the facts, it would be relevant to mention that
Justice Patel returned to the Principal Bench at Bombay on 24.10.2017.
It is also an admitted fact that on 01.11.2017, certain clarifications were
made before the Court (Justice Patel) by the parties through Hybrid
mode regarding the issue of whether the parties are arriving at a
settlement or not. The second appeal was allowed vide judgment and
order dated 30.01.2019. The judgment was delivered through virtual mode
by the learned Judge while sitting at Bombay.
7. A Review petition was filed by the respondent on 12.02.2019
registered as Civil Review Application No. 7 of 2019. It was listed before
Justice Nutan D. Sardessai and after hearing learned counsel for the
1 In short “CPC”
SURESH G. RAMNANI v. AURELIA  ANA  DE PIEDADE MIRANDA @
ARIYA  ALVARES (DEAD THR. LRS) [VIKRAM NATH, J.]
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review applicant, the same was ordered to be admitted on 04.03.2019.
The said order is reproduced below:
“Heard Shri A. Diniz, learned Advocate for the applicants.
2. Admit.”
8. At this stage when the notice of the review was served, an
application was moved by the appellant on 16.07.2019 registered as Misc.
(Civil) Application No.526 of 2019 with the prayer that the Civil Review
Application No.7 of 2019 be ordered to be transferred and be placed
before Justice G.S. Patel for final disposal. The said application was
supported by an affidavit dated 06.06.2019. The prayer clause as
contained in paragraph 9 of the application is reproduced below:
“9. It is therefore prayed that:
(a) The above Civil Review Application No.7/2019 be ordered
to be transferred and be placed before his Lordship Justice
G.S.Patel in Mumbai for final disposal.
(b) Early date for hearing in the matter be fixed.”
9. The above application has been rejected vide impugned order
dated 16.07.2019 by Justice Prithviraj K. Chavan. We are conscious of
the fact that normally the names of the judges may not be required to be
mentioned in the order but considering the issue involved in the matter,
the names have been mentioned.
10. We have heard learned senior counsel for the parties and
perused the material on record.
11. Shri Huzefa Ahmadi, learned senior counsel for the appellant
submitted that review petition should be heard by the same Hon’ble
Judge
under the provisions of Order 47 Rule 5 of the CPC read with
High Court amendments made thereunder for the State of Maharashtra.
Order 47 Rule 5 was substituted by Maharashtra Government Gazette
dated 15.09.1983 to be effective from 01.10.1983. The said provision
reads as under:
“5. Application for review in Court consisting of two or more
judges.- Where the Judge or Judges, or any one of the Judge,
who passed the decree or made the order, a review of which is
applied for, continues or continue attached to the Court at the
time when the application for a review is presented, and is not or
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are not precluded by absence or other cause for a period of six
months next after the application from considering the decree or
order to which the application refers, such Judge or Judges or any
of them shall hear the application, and no other Judge or Judges
of the Court shall hear the same.
HIGH COURT AMENDMENTS
Bombay - In Order XLVII, for rule 5, substitute the following
rule, namely:
“ 5. Application for review in Court consisting of two or
more Judges.- Where the Judge or Judges, or any one of the
Judges who passed the decree or made the order, a review of
which is applied for, continues or continue to be attached to the
Court at the time when the application for a review is presented,
and is not or are not precluded by absence or other cause for a
period of two months next after application from considering the
decree or order to which the application refers, such Judge or
Judges or any of them shall hear the application, and no other
Judge or Judges of the Court shall hear the same:
Provided that if in the case of a decree or order passed by
a Division Bench of two or more Judges of the High Court sitting
at any place in the State of Maharashtra, all the said Judges are
not available for sitting together at one place when the review
application is ready for hearing, the application may be heard by a
Division Bench of two or more Judges, at least one of whom, if
available, should be the Judge who had passed the decree or order
a review of which is
applied for.””
12. Our attention was also drawn to Chapter XXX Rule 3(1) of
the Rules of the Court applicable for the Bombay High Court2 which
also provided that it should be heard by the same Judge, however, subject
to certain situations where such Judge has ceased to be Judge of the
High Court or have ceased to sit at the particular Bench, in that event, it
would be placed before the Regular Court of the single Judge dealing
with that category of the matters. The said provision i.e. Rule 3(1) of
Chapter XXX of the Rules is reproduced below:
“3.(1) An application for review or for amendment of an order or
a decree, for speaking to the minutes passed by a Single Judge of
2 In short “Rules”
SURESH G. RAMNANI v. AURELIA  ANA  DE PIEDADE MIRANDA @
ARIYA  ALVARES (DEAD THR. LRS) [VIKRAM NATH, J.]
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this Court shall be placed before that Judge: provided, however,
where such Judge has ceased to be the Judge of the High Court
or has ceased to sit at the particular Bench, such application shall
be placed before the regular Court of the Single Judge dealing
with the category of matters to which the proceedings relates as
for example: -
(a)
Writ petition, if the original order had been passed in a
Writ Petition;
(b)
First Appeals, if the original order had been passed in
any other Civil matters;
(c)
Criminal Appeals, if the original order had been passed
in any Criminal matters;
Provided that, where the Single Judge concerned is not
available for the time being by reason of he being on
leave or otherwise as aforesaid such application shall be
placed before the Court of Single Judge to which the
matter may be assigned by the order of the Honourable
Chief Justice.”
13. Referring to the above rule, Shri Ahmadi submitted that the
Rules having been framed more than 25 years back and considering the
advancement of technology and present setup available for virtual hearing
through video conferencing and the same Judge being available at the
principal seat of the Bombay High Court, the review should have been
heard by the same Judge. Shri Ahmadi has also placed reliance upon the
following judgments of this Court i.e.:
•
Malthesh Gudda Pooja vs. State of Karnataka3
•
Goel Ganga Developers India Pvt. Ltd. versus Union of
India
through Secretary Ministry of Environment and
Forests and others4
14. On the other hand, Shri Nakul Dewan, learned senior counsel
appearing for the respondents submitted that the appellant ought not to
have carried the matter to this court where the proceedings were being
conducted as per the Rules. Shri Dewan has sought to impress upon us
by analyzing Rule 3(1) of Chapter XXX of the Rules to state and to
3 (2011)15 SCC 330
4 (2018) 18 SCC 257
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submit that as Justice Patel was no longer sitting at the Goa Bench,
Review Petition had to be heard by the Judge having roster of the said
categories of the matters to which the proceedings relate i.e. the learned
Judge at the Goa Bench hearing second appeals. Further, reliance has
been placed upon by Shri Dewan on the same judgment of Malthesh
Gudda Pooja (supra). He has also sought to distinguish the judgment in
the case of Goel Ganga Developers India Pvt. Ltd. (supra), relied
upon by the appellant as the said proceedings were relating to National
Green Tribunal and the procedure prescribed therein. Further reliance is
place upon the following two judgements:
•
Maharashtra Housing & Development Authority vs. P V
Anturkar5.
•
Ratanlal Nahata v. Nandita Bose6.
15. Having considered the submissions, we find that the matter
does not raise any factual issue, but it is only a question of interpretation
of the Rules, the Court’s propriety and jurisdiction. We do not wish to go
into the issue of interpreting the Rules in order to hold as to whether the
review should be heard by Judge ‘A’ or any other Judge. However, we
are of the view that considering the overall facts and circumstances of
the case, once an application was preferred by any of the parties that a
review may be heard by the Judge who had decided the matter and had
passed the order from which the review arose, the matter ought to have
been placed before the Chief Justice on the administrative side
rather
than order being passed on the judicial side. The proviso to Rule 3(1) of
Chapter XXX of the Rules confers this power on the Chief Justice to
assign a particular matter to a single Judge for hearing of the review
application where the single Judge concerned was not available for the
time being by reason of being on leave or otherwise as aforesaid i.e.
where he had ceased to sit at a particular Bench. The Chief Justice,
being the master of roster and being conferred with specific powers of
assigning review petitions in given circumstances under the Rules, the
learned single Judge ought not to have dealt with the application dated
16.07.2009 (Misc. Civil Application No.526 of 2019), but should have
referred the matter to be placed before the Chief Justice.
16. Accordingly, in the facts and circumstances of the case, we
allow the appeal, set aside the impugned order dated 16.07.2019 and
5 (2009) 3 Mh Lj 266
6 (1998) 3 CALLT 348 HC
SURESH G. RAMNANI v. AURELIA  ANA  DE PIEDADE MIRANDA @
ARIYA  ALVARES (DEAD THR. LRS) [VIKRAM NATH, J.]

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direct the registry of the High Court to place the said application (Misc.
Civil Application No.526 of 2019) on the administrative side before the
Hon’ble Chief Justice for appropriate orders.
Nidhi Jain
Appeal allowed.