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2000 DIGILAW 681 (RAJ)

HCM INSTITUTE RIPA v. JAI SINGH

2000-05-29

V.S.KOKJE

body2000
Judgment V. S. KOKJE, J. ( 1 ) THE brief facts leading to the case being fixed before me today are as under: ( 2 ) THIS review petition has been filed against the judgment in D. B. Civil Special Appeal no. 308/97 rendered by a Division Bench consisting of Honble Mr. Justice M-P. Singh and Honble Mr, Justice Arun Madan. Honble mr. Justice M. P. Singh has since retired and for that reason, is not available to hear the review petition. ( 3 ) INITIALLY, when the review petition was filed, the Division Bench deciding the special appeal was available arid the matter was placed before the Bench consisting of Honble Mr justice M. P. Singh and Honble Mr. Justice arun Madan on 30. 9. 97. Notices were directed to be issued to the respondents. The review petition continued to be posted before different Division Benches even after retirement of honble Mr. Justice M. P. Singh. When it was posted, before the Division Bench consisting of myself and Honble Mr. Justice Arun Madan on 17. 5. 2000, it was directed that it be placed before Hbhble Mr. Justice Arun Madan sitting singly in view of Rule 64 of the Rules of the high Court of Judicature for Rajasthan, 1952 (hereinafter referred to as the Rules ). When the matter was placed before Honble Mr. Justice Arun Madan on 25. 5. 2000, he directed it to be placed before me again. Learned counsel for the parties submitted that this order was made by the learned Single Judge when his attention was drawn to a decision of the supreme Court in State of Rajasthan v. Gopal singh. This is how the matter has been posted before me. ( 4 ) I have carefully perused the decision of the Supreme Court in State of Rajasthan V. Gopal Singh (supra ). With very great respect, I am of the view that the direction given in the aforesaid decision to place the matter before a bench of two Judges is exactly against the provisions of Rule 64 read -with Order 47 Rule 5 cpc. The decision, however, directs the Chief justice to comply with Rule 64 of the Rules read with order 47 Rule 5 CPC. ( 5 ) IT would be necessary to quote Rule 64 of the Rules and Order 47 Rule 5 CPC. They are extracted below :"rule 64. Application. The decision, however, directs the Chief justice to comply with Rule 64 of the Rules read with order 47 Rule 5 CPC. ( 5 ) IT would be necessary to quote Rule 64 of the Rules and Order 47 Rule 5 CPC. They are extracted below :"rule 64. Application. for review-An application for the review of a judgment shall be presented to the Registrar who shall endorse thereon the date when it is presented and lay the same as early as possibly before the Judge or Judges by whom such judgment was delivered along with an office reporj: as to limitation and sufficiency of Court fees if such judge or Judges or any one or more of such Judges be no longer attached to the Court, or all, or one of them, are or is 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, the application shall be laid before the Chief Justice, who shall with due regard to the provisions of Rule 5 of Order XLVII of the Code, arrange for a Bench for the hearing and disposal of such application. ""rule 5 Order 47 CPC, Application for review in Court consisting of two or more Judges.- Where the Judge or judges, or any one of Judges, who passed the decree or made the order, a review of which applies for, continues or continue 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 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. " ( 6 ) A plain reading of Rule 64 of the-Rules would show that even if one of the Judges of the Division Bench deciding matter is not available for hearing the review petition, the application is to be laid before the Chief Justice who has to arrange for a Bench for hearing and disposal of such application having due regard to the provisions of Rule 5 Order 47 cpc. It is incumbent on the Chief Justice, therefore, to arrange for a Bench for hearing and disposal of the review application having due regard teethe provisions of Rule 5 Order 47 CPC. A bare reading of Order 47 Rule 5 cpc would show that in case of non-availability of one of the Judges of the Division Bench consisting of two judges to hear the review petition, it can be heard and disposed of only by the remaining Judge. The rule does not stop at clothing the remaining Judge with authority to decide the review petition alone but also further injuncts that no other Judge or Judges of the Court shall hear such a review petition. The irresistible conclusion therefore, is that this review petition has to be placed before Honble mr. Justice Arun Madan who only shall be competent under Order 47 Rule 5 CPC to hear and decide the same. Rule 64 of the Rules only provides the procedure to be followed by the Registry of the High Court. It does not create or extinguish authority of the Judge or judges to hear the review application. It only provides that in case of non-availability of a judge or Judges consisting the Bench for hearing the review petition, the Registry has to put up the matter before the Chief Justice who shall arrange for a Bench for hearing and disposal of such application. . When all the Judges deciding a matter are not available, the Chief justice has to constitute a new Bench. When one of them is available, the Chief Justice has been given no discretion and he has to place the matter before the available Judge of the bench as provided by Order 47 Rule 5 CPC. ( 7 ) IN State of U. P. v. Synthetics and chemicals Ltd. and Another the Supreme court itself has explained the doctrine of per incuriam. It was observed, relying on B. Shama Rao v. Union Territory of Pondicherry that anything which escapes in the judgment without any occasion is not ratio decidendi. It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein. It was observed, relying on B. Shama Rao v. Union Territory of Pondicherry that anything which escapes in the judgment without any occasion is not ratio decidendi. It is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein. Any declaration or conclusion arrived at without application of mind or preceded without any reason, cannot be deemed to be a declaration of law or authority of the general nature binding as a precedent. Restraint in dissenting or over-ruling is for the sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law. Law declared is not that can be culled out but that which is stated as law to be accepted and applied. A conclusion without reference to relevant provision of law is weaker than even casual observation. ( 8 ) LEARNED counsel appearing before the supreme Court in State of Rajasthan v. Gopal (supra) failed in their duty to point out to the supreme Court that Order 47 Rule 5 CPC itself requires the matter to be placed before the available Judge alone. Because of this, the court observed that the matter which would ordinarily go to the Division Bench could not be disposed of by the learned Single Judge and what was done was not clearly Under Rule 64 of the Rules read with Rule 5 Order 47 cpc. Because of this, the order of the High court was set aside and the matter was remitted back with a direction for constitution of bench of two learned Judges for disposal of the review petition, In my view, the ratio decidendi of the aforesaid decision is not that when one of the Judges of the Division Bench deciding the matter is not available, the matter cannot be decided by the available Judge alone but has to be placed before the Division Bench of two judges. Actually, what has been decided is that the Chief Justice has to constitute the bench under Rule 64 of the Rules read with order 47 Rule 5 CPC and as already pointed out, in view of clear provision of Rule 5 Order 47 CPC the conclusion is inescapable that the matter has to be placed before the available judge alone. Actually, what has been decided is that the Chief Justice has to constitute the bench under Rule 64 of the Rules read with order 47 Rule 5 CPC and as already pointed out, in view of clear provision of Rule 5 Order 47 CPC the conclusion is inescapable that the matter has to be placed before the available judge alone. ( 9 ) IT is, therefore, directed that the matter be placed before Honble Mr. Justice Arun madan again on 1. 6. 2000. If his Lordship is still of the opinion that the matter cannot be heard by him alone, a request for the constitution of appropriate Division Bench or a larger bench to decide the issue may be made. Order accordingly. .