Anand Issardas Motiani v. Virji Raisi — 1983 DIGILAW 157 (BOM)

Judgement MASODKAR, J.:- This Letters Patent Appeal is directed against the order made by the learned single Judge of this Court in the proceedings which were initially filed by writ petition bearing Writ Petition No. 1835 of 1981 and which came to be renumbered as Miscellaneous Civil Application No. 9 of 1982. The proceedings taken before the learned single Judge of this Court, initially invoking the constitutional jurisdiction and, thereafter, the powers of the Court under section 24 C. P. C., 1908, relate to a suit filed by the respondent in the Court of Small Causes at Bombay bearing R. A. B. and R. suit No. 627/2240 of 1980. By the impugned order, the said suit has been transferred from the Court of Mr. S.B. Desai, J. to any other Judge of the Court of Small Causes. The appellants are the defendants in that suit. 2. It appears and it is not in dispute that before the learned single Judge of this Court, the whole proceedings of the said suit were put in question so as to show that the plaintiff-suitor harboured reasonable apprehension that he would not get justice from the Court of Mr. S.B. Desai. It further appears that considerable time was occupied of the learned single Judge in perusing the proceedings right from the stage of pleadings, issues, evidence and what transpired in the Court before the trial Court at various stages. After considering all this material at great length and in details, an order is made holding in favour of the respondent and directing transfer of the suit from the Court of Mr. S.B. Desai to any other Court. 3. Thus, in pith and substance, the order before us is one that of transfer of a suit, within the meaning of S.24, C. P. C., or corresponding provisions of Cl.18, Letters Patent. 4. That being the position, the first and preliminary objection raised on behalf of the defending respondent is to the tenability of the appeal. On the strength of two decisions of the Supreme Court reported in the cases of Asrumati Debi v. Rupendra Deb, AIR 1953 SC 198 ; and Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786 , Mr. Hegde contended that the entire appeal was not maintainable. On the strength of two decisions of the Supreme Court reported in the cases of Asrumati Debi v. Rupendra Deb, AIR 1953 SC 198 ; and Shah Babulal Khimji v. Jayaben, AIR 1981 SC 1786 , Mr. Hegde contended that the entire appeal was not maintainable. As far as several findings recorded by the learned Judge in the course of the judgment, the learned counsel submitted that those findings are merely in the nature of obiter or observations so as to find out as to whether the plaintiff was justified in contending that he had reasonable apprehensions of not getting fair trial before the concerned Court 5. As against this, for the appellants, Mr. Abhyankar contended that had the matter rested only at that as is pointed out by Mt. Hegde, the decisions of the Supreme Court would render the present appeal untenable. However, Mr. Abhyankar's contention is that the present judgment under challenge at least an three matters independently of the relief of transfer, one way or the other, concludes the rights of the parties. The learned counsel submits that to the extent the judgment purports to conclude the rights and entitlements of the parties with regard to matters in the pending suit, the judgment would be appealable. 6. These three aspects according to the learned counsel consist of determining the question with regard to the issues between the parties and setting aside the order made in that regard by the Court at an anterior date, determining as to whether the record of evidence as was made by the learned Judge and which was sought to be corrected before the learned Judge, but without success, was correct or not and the passing of an order thereon; and thirdly findings with regard to the conduct of the counsel Mr. S.B. Gandhi, advocate, who appeared for the defendants before the trial Court. On each of these matters, the learned counsel contends that the rights and entitlements of the parties have been decided and, therefore, the appeal questioning these matters to that extent would be tenable. In his submission, the order is not simple order of transfer but multiple order determining matters in controversy. We may record that Mr. Hegde fairly submitted that he will be willing to abide by any reasonable variation that may be made if the same protects the rights of both the parties. 7. In his submission, the order is not simple order of transfer but multiple order determining matters in controversy. We may record that Mr. Hegde fairly submitted that he will be willing to abide by any reasonable variation that may be made if the same protects the rights of both the parties. 7. We have given our anxious consideration to the question of tenability of such appeal in the light of the Supreme Court decisions referred to by Mr. Hegde. It is, undoubtedly, true that a judgment transferring the suit would not be "a judgment" within the meaning of clause 15, Letters Patent, of this Court and as such would not be appealable. That has been settled and ruled in the case of Asrumati Debi's case ( AIR 1953 SC 198 ) (supra), but cases may arise when apart from exercising the power in the matters of transfer either as envisaged by Cl.13. Letters Patent, or S.24, C. P. C., the judgment in question proceeds to decide substantive matters in issue affecting the rights and entitlements of the litigating parties in the suit itself. 8. Cases can be conceived wherein in such type of proceedings, question is raised with regard to the legality or propriety of the orders made by the Court for the purpose of showing the need of transfer of a given case. Similarly, cages can be conceived where the Court is called upon to adjudicate with regard to the matters decided by the Court and the Court may proceed to decide the same while considering the matter of transfer. The High Court is not powerless nor does it lack jurisdiction so as to find legality or otherwise of the orders made and brought before it though in the proceedings seeking transfer of a suit. If the Court is called upon to determine the legality and propriety of given orders and also is requested to gives relief of the transfer of the suit and it proceeds to adjudicate by one and composite order all these matters, there being no lack of jurisdiction to render such judgment, we think it is a matter of construction of each judgment so as to decide whether a particular aspect is appealable or not. In such a case if the relief of transfer is severable from the other reliefs to the extent that relief concludes the controversy one way or other between the parties, we think the intra-Court appeal should be available. It is more so because the finding so recorded while rendering such a composite order would be binding on the Court and also on the parties though recorded while directing the transfer of the given cause. Such result may ensure particularly when reliefs are claimed by invoking extraordinary jurisdiction like the one conferred by Art.226 read with Art.227 of the Constitution along with powers exercised under S.24, C. P. C. 9. After careful consideration of the order under appeal, we think it is a case of that kind. Not only it purports to decide that in the interest of justice the case should be transferred from one Court to another but also in different parts of the judgement decides the matters with regard to the issues, with regard to the record of the evidence and with regard to the conduct of an advocate who participated in the proceeding. If we were to take the view that by reason of the ultimate order which directs the transfer these findings are also rendered non-appealable, the party affected would be put to prejudice and would be without remedy, for there would be a conclusion one way or the other of the rights and entitlements and only by reason of the ultimate order such conclusion would remain final and binding all through the proceedings not only in the trial but even at the later stage. Surely, such a result cannot be conceived. The simple test that appears to our mind germane is the one to test the appealability of each severable part of the concluded finding. If that part were to be rendered in separate proceedings by an order that would be final and as such appealable then there is no reason why only because that is made the part of the composite order it should not be treated as appealable as "the judgment" within the meaning of Cl.15, Letters Patent. 10. If that part were to be rendered in separate proceedings by an order that would be final and as such appealable then there is no reason why only because that is made the part of the composite order it should not be treated as appealable as "the judgment" within the meaning of Cl.15, Letters Patent. 10. With regard to such types of cases, in our view, the decision of the Supreme Court in Shah Babulal Khimji v. Jayaben, AIR l981 SC 1786, provides the support and lays down a clear approach so as to find the appealability under Cl.15, Letters Patent. The Supreme Court after considering all its earlier decisions, including the decision in Asrumati Debi v. Rupendra Deb, AIR 1953 SC 198 , summarised the position in para 119 and observed that apart from the test laid down by Sir White, C. J. in Tuljaram Row's case, (1912) ILR 35 Mad 1 (FB), the following considerations must prevail while determining the appealability under Cl.15, Letters Patent : "(1) That the trial Judge being a senior Court with vast experience of various branches of law occupying a very high status should be trusted to pass discretionary or interlocutory orders with due regard to the well settled principles of civil justice. Thus, any discretion exercised or routine orders passed by the trial Judge in the course of the suit which may cause some inconvenience or, to some extent, prejudice one party or the other cannot be treated as a judgment otherwise the appellate Court (Division Bench) will be flooded with appeals from all kinds of orders passed by the trial Judge. The Courts must give sufficient allowance to the trial Judge and raise a presumption that any discretionary order which he passes must be presumed to be correct unless it is ex facie legally erroneous or causes grave and sub-stantial injustice. (2) That the interlocutory order in order to be a judgment must contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or in a part of the proceedings. (3) The tests laid down by Shri White, C. J. as also by Sir Couch, C. J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind."(Underlining provided.) 11. (3) The tests laid down by Shri White, C. J. as also by Sir Couch, C. J. as modified by later decisions of the Calcutta High Court itself which have been dealt with by us elaborately should be borne in mind."(Underlining provided.) 11. The test mentioned by para 2 above clearly shows that even an interlocutory order may contain traits and trappings of finality purporting to decide the question in controversy in an ancillary proceedings or in the suit itself or in a part of the proceedings. Now, the proceedings taken for the transfer of the suit clearly partake in the character of the ancillary or collateral proceedings with regard to the suit. In such proceedings, if the orders are made deciding substantive matters in controversy one way or the other and it has the effect as well as all the trappings of finality, it appears to us that with regard to such parts the grievance can be made under Cl.15, Letters Patent. After all, as is evident from the Supreme Court view, the proceedings of intra-Court appeal are not restrictive by the use of the word "judgment" which is not equivalent to "the judgment" as is defined by the Civil P. C., 1908. The word "judgment" used by Letters Patent is much wider and whenever the controversy is decided affecting valuable rights of one of the parties, such decision would be appealable, being "the judgment" within the meaning of Cl.15 subject, however, the other conditions being satisfied so as to make the appeal tenable. 12. We have already stated that the present are the proceedings filed as writ petition under Arts.226 and 227 of the Constitution. The exercise of powers by the learned single Judge clearly shows that all that constitutional jurisdiction was also exercised while making the judgment. It is pertinent to observe that in the writ petition, the claim was set up for directing the Court to pass a decree in eviction by bringing before the Court the entire record of the suit. It is in the proceedings of this writ petition eventually with regard to the same suit that a prayer was made for the purpose of transfer and white deciding that prayer, the proceedings in suit and the orders made by the Court in the suit were also challenged. It is in the proceedings of this writ petition eventually with regard to the same suit that a prayer was made for the purpose of transfer and white deciding that prayer, the proceedings in suit and the orders made by the Court in the suit were also challenged. We, therefore, think that the construction of the order under appeal shows that the learned single Judge did exercise his powers not merely of superintendence but also by reason of Article 226 and, as is evident, did direct the setting aside of the issues framed and so also gave directions with regard to the record of the evidence and also considered the complaint against the advocate in relation to the proceedings. It is not necessary to refer in details to these parts of the judgment, for this position is obvious. 13. Mr. Hegde tried to submit that these matters could be said to be decided only for the purpose of giving "special directions". Reliance is placed on sub-section (2) of Section 24, C. P. C., 1908. We fail to see how this could be an order of special direction. What sub-section (2) of S.24 provides is that where a suit is so transferred, the transferee Court is enabled to try or dispose of such suit either by retrying it or proceeding from the point at which it was transferred to such transferee Court. Whether the suit should be retried or should be proceeded from the point at which it was so transferred is made subject to special directions. It is plain. Therefore, that the special directions in that regard should be of that kind with regard to the retrial or proceeding from the stage of the suit at which it was transferred. In the context of the power of transfer conferred by Sec.24, C. P. C., "special direction" does not mean that the Court while transferring the suit is enabled to adjudicate upon substantive controversy that arises between the parties with regard to the matters involved in the suit. If there is no special direction, sub-section (2) of S.24, C. P. C., simply leaves the matter to the transferee Court either to retry the suit in its entirety or to proceed with the trial of the suit from the point at which it was transferred. If there is no special direction, sub-section (2) of S.24, C. P. C., simply leaves the matter to the transferee Court either to retry the suit in its entirety or to proceed with the trial of the suit from the point at which it was transferred. We cannot see how we can treat all the matters above to be the matters of special directions. If upon analysis, these were the matters that could fall within the special directions, then and then alone the intra-Court appeal would, against such directions, be not entertainable. 14. As we have come to the conclusion that, to the extent above, the appeal is entertainable, we may record that both the learned counsel fairly conceded that the ends of justice will be met if the conclusive character of these matters is removed and the matter is directed to be tried by the transferee Court from the stage of framing the issues it the light of the observations available in the judgment of the learned single Judge and also by recording evidence all afresh. We think that this is fair enough. However, we would indicate our brief reasons also in that regard. 15. Now, turning to the question of issues, the eventual order sets aside the issues framed at the trial and substitutes the issues framed by the judgment under appeal and directs the trial on the basis of those issues. While doing so, the judgment under appeal further restricts the liberty of framing additional issues, stating that such issues should be restricted to the pleadings and could not be framed otherwise. Now, the provisions of O.XIV, C. P. C., and particularly sub-rule (5) of R.1, lays down how the issues are to be framed. Sub-rule (5) of R.1 directs the Court to frame issues after taking into account the pleadings, i.e. the plaint and the written statement, if any, under R.2 of O.X and also after hearing the parties or their pleaders so as to ascertain the material propositions of fact and law at which the parties are at variance. Sub-rule (5) of R.1 directs the Court to frame issues after taking into account the pleadings, i.e. the plaint and the written statement, if any, under R.2 of O.X and also after hearing the parties or their pleaders so as to ascertain the material propositions of fact and law at which the parties are at variance. The position does not admit any doubt that the pleadings, i.e. the plaint and the written statement, and perusal thereof are merely a first stage so as to ascertain the differences between the parties, but when the pleadings are not exhaustive on that aspect, the Court is at liberty to examine the parties so as to find the provisions of law of fact at which they are at variance. (See Gunga Narain Gupta v. Tiluckram Chowdhry, (1888) ILR 15 Cal 533 at page 537, and Korn Kutty v. Abammad, AIR 1925 Mad 169 ). The function of the Court lies in ascertaining the real dispute between the parties from the pleadings or by examining the parties and/or by hearing the learned counsel with regard to the propositions on which there is a dispute (see J.K. Iron and Steel v. Mazdoor Union, AIR 1956 SC 231 at page 235). Once the point is in dispute, it will be an error of jurisdiction on the part of the Court to refuse to frame an issue on such a point and decide the same. No doubt, for the purpose of the issues, the pleadings are in the nature of basic material. Sub-rule (2) of R.1 of O.XIV, C. P. C., indicates as to what are the material propositions and sub-rule (5) of R.1 lays down the procedure for their ascertainment. This is enough to show that the transferee Court could not be subjected to settle the issues by recourse to giving special directions. On the other hand, the matter should be left, if the circumstances warrant, by indicating what could be the issues to be decided by the transferee Court. As already pointed out, the judgment under appeal not only frames fresh issues but restricts the framing of the additional issues to the given pleadings. On the other hand, the matter should be left, if the circumstances warrant, by indicating what could be the issues to be decided by the transferee Court. As already pointed out, the judgment under appeal not only frames fresh issues but restricts the framing of the additional issues to the given pleadings. It is obvious that with regard to the grievance in the matter of issues, not only the Court has set aside the order of the trial Court but has itself recast the issues and further directed that the trial Court will be at liberty to entertain an application on behalf of any of the parties for some additional issues, but no issues shall be allowed if the framing of the same is not warranted by the pleading. It is further observed that the issues already omitted would not be permitted nor any application could be entertained therefor because the order states that these issues were framed after hearing fully the learned counsel of both sides. The additional issues would be restricted to the subsequent events. It is also clearly stated that the issues must arise out of the pleadings as they exist and should not be permitted unless they arise out of the pleadings. With regard to the issues, therefore, the order does not admit any doubt that the trial Court's order framing certain issues has been set aside, new issues have been framed and further the liberty of the parties to seek additional issues has been restricted only to the pleadings and to the events that might have occurred after the suit is filed and specifically pleaded in the pleadings. So is the case with regard to the record of evidence. It appears that the parties and particularly the plaintiff had complaint and grievance with regard to the recording of the testimony of the plaintiff and even applications were moved before the trial Court for correcting the record and those applications were rejected by the Court. This aspect of the matter occupies much of the discussion in the judgment under appeal. We have been taken through all that part of the judgment by both the learned counsel. This aspect of the matter occupies much of the discussion in the judgment under appeal. We have been taken through all that part of the judgment by both the learned counsel. Though, undoubtedly, there does appear to be a good ground for correcting the record of the depositions because of the errors that have crept in, as is at length discussed by the learned Judge, for the present it is enough to observe that the substantive matter between the parties as to whether the evidence was recorded in a correct manner or not has been decided by the order under appeal holding that some of the errors were typographical and some of the errors were sub-santial. Similarly, the third aspect concerning the learned advocate appearing for the defendants, Mr. S.B. Gandhi, appears to have proceeded on the basis that Mr. Gandhi, the learned advocate, was bound to appear before the learned single Judge without notice and his conduct in not making himself available is taken note of and has weighed against the party he represented. From that the statement of the learned counsel appearing before the learned single Judge is said to have added probity so as to hold the charge that the Presiding Court was practicing discrimination in favour of Mr. S.B. Gandhi as established. The conduct of the advocate Mr. S.B. Gandhi does appear to be put in issue before the Court not only with regard to the pleadings that were filed on behalf of the defendants but also with regard to different matters and proceedings that went on before the Court particularly regarding the record of the testimony and the corrections sought by the plaintiff. In several paragraphs in the judgment unties appeal, we find references to Mr. S.B. Gandhi. It appears that the grievance before the learned single Judge was that the trial Court was unduly biased in his favour and was carried away by Mr. S.B. Gandhi and there is a suggestion all through that Mr. Gandhi was exploiting this position. Pertinent it is to note that the judgment under appeal observes that Mr. Gandhi was not available to the Court and, therefore, Mr. Hegde's submission across the Bar did weigh more and did add strength to the position taken by the applicants. In para 20, the judgment under appeal observes that Mr. Gandhi was exploiting this position. Pertinent it is to note that the judgment under appeal observes that Mr. Gandhi was not available to the Court and, therefore, Mr. Hegde's submission across the Bar did weigh more and did add strength to the position taken by the applicants. In para 20, the judgment under appeal observes that Mr. Gandhi did not take pains or was not in structed to take pains at any time to come before the Court to deny the correctness of the statement made by Mr. Hegde. It further observes that Mr. Gandhi had himself made conspicuously scare in the Court, From that and from the fact that Mr. Hegde across the Bar was supporting the allegations, the judgment holds in favour of the petitioner. It is not necessary to make further references to all the observations. Fair reading of the judgment under appeal shows that Mr. Gandhi's conduct as an advocate for the party influencing the proceedings in suit at various stages did form part of debate and consideration and inferences are derived and findings are recorded as arising therefrom. 16. Exception is taken to this course adopted by the judgment under appeal. It is submitted that without issue of the notice to Mr. Gandhi with regard to the specific conduct, it is unfair and against the principles of natural justice to conclude, one way or the other, the matter that touches the conduct of a member of a legal profession. It is further submitted that the findings so recorded are fraught with danger of exposing a member of the legal profession of such a senior standing not only to the charge that flows from the judgment but also to the proceedings that may arise in an appropriate forum. If the principle of fairness itself is breached, the contention is that such findings will have to be treated as not rendered according to law. 17. Now, we must say that fairness is all fundamental to justice. Fairness at the beginning, fairness during the proceedings and fairness at the conclusion of a judicial proceeding is the sine qua non of the judicial administration. Justice in fact is another name of fairness. 17. Now, we must say that fairness is all fundamental to justice. Fairness at the beginning, fairness during the proceedings and fairness at the conclusion of a judicial proceeding is the sine qua non of the judicial administration. Justice in fact is another name of fairness. It requires that before the Court makes up its mind one way or the other, particularly with regard to any party or a member of the profession, such party or member of the profession should have an adequate notice and an opportunity of being heard. Such an occasion may arise by reason of the proceedings brought before the Court or by reason of the accusations involving the conduct directly or indirectly of the member of the legal profession and then the principle would be attracted. To give adequate notice and furnish an opportunity appears to us to be the basic principle of natural justice and any conclusion or judgement rendered contrary to the principles of natural justice would not be binding either on the parties or the professional nor would it furnish a foundation for the purpose of initiating or deciding their conduct or misconduct in any other collateral or ancillary proceedings. 18. We share, if it be true, the concerns expressed by the learned counsel that incident are on increase wherein judgments are rendered involving the conduct of the member of the legal profession without any notice being given or opportunity being afforded of being heard. As and when conduct comes in issue, we think adequate notice should be given to the concerned advocate. This is more so because of the position of the member of the legal profession which is a position of high status and to it are attached equally high responsibilities. Members of this noble profession are treated to be officers of the Court ever required to uphold the dignity and decorum of the Court and also enjoined not to do anything that would bring the Court or their position in disrepute. (See Lalit Mohan v. Advocate General, AIR 1957 SC 250 ). From the status and position so conferred on the member of the legal profession, he has to maintain fine balance between the interest of the party he represents, dignity of his office as well as that of the Court. (See Lalit Mohan v. Advocate General, AIR 1957 SC 250 ). From the status and position so conferred on the member of the legal profession, he has to maintain fine balance between the interest of the party he represents, dignity of his office as well as that of the Court. When without notice or ex parte inferences are drawn of conclusions are reached, all this and much more is at stake. That itself highlights the necessity to be circumspect and always keeping to the basic rules of justice. 19. When, therefore, aspersions are cast on the conduct of the member of the legal profession and the Court is called upon to appreciate the same one way or the other, we take it as basic that such complaint or grievance against the conduct of the advocate should be fairly appreciated after giving adequate notice in that regard to the advocate concerned. To such situation the age-old maxims, namely, (i) Nemo judex in causa sua and (ii) Audi alteram partem, clearly apply. The second maxim simply contains the rule that no one could be condemned unheard. We do not subscribe to the view that these are mere matters of procedure. These are, on the other hand, matters of substance going to the very root of justice to be meted to the person whose conduct is in issue. In our system of administration of justice, this principle appears to be firmly grounded and would apply with greater force in the matters concerning the professional conduct. 20. In the present controversy, allegations were made against the conduct of Mr. Gandhi, who appears to be quite a senior advocate. It does not appear that any notice was given. From the judgment under appeal, it appears that the Court expected Mr. Gandhi to come and deny these allegations. Such course does not appear to be adequately furthering the principles of natural justice. What was observed by Lord Chancellor Viscount Haldane in Local Government Board v. Arlidge, (1915) AC 120, does apply in such matters. Lord Chancellor Viscount Haldane said : "My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. Lord Chancellor Viscount Haldane said : "My Lords, when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of Tribunal whose duty it is to mete out justice." It is, therefore, obvious that the inferences drawn and the findings recorded with regard to the conduct of Mr. Gandhi which have, undoubtedly, a tendency to affect him as a professional would be treated as not rendered in accordance with law and would not be binding on the advocate concerned, nor would be available as the basis for furnishing any material so as to lay a charge of misconduct against him. We think that this much is enough to protect everyone concerned as far as the allegation against Mr. Gandhi are concerned. 21. We must say in fairness that Mr. Hegde, who appeared for the respondent did not dispute this position and, in fact, was good enough to submit that this should be the proper course. 22. In the result, with regard to the three matters indicated above, we hold the appeal as tenable and direct the transferee Court to try the transferred suit from the stage of issues. While framing the issues, that Court will take into account the observations made by the learned single Judge in that regard. Similarly, the transferee Court will thereafter record the evidence all anew and proceed to decide the suit as expeditiously as possible by the end of November, 1983. If any party seeks amendment of the pleadings, that may be done within two weeks. The Court to deal with it according to law. The appeal to this extent succeeds and is allowed. There would be no order as to costs in the appeal. Ordered accordingly.