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2003 DIGILAW 6 (JK)

Mohd. Nazir Fida v. Habibullah Shora

2003-02-06

B.L.BHAT, T.S.DOABIA

body2003
Per Doabia, J To err is human�. This is the precise reason that in the system of administration of justice, remedies of appeal and revision have been provided for. 2. The appellant in this case submits that the adverse remarks made by a learned Single Judge of this Court in Civil Revision No. 48/01 and 49/01 were not only exparte but there was justifiable reason for delay which was occasioned in this case. 3. The adverse remarks which have been made against the appellant are as under:- (i) The delay of 29 years in the present case has been caused mainly by resorting to side track litigation revisions transfer petition and other ancillary applications and also by lack of supervision by the trial court and lack of control of the presiding officer to the file in total defiance of the repeated directions of the superior courts." (ii) However, since both the presiding officers of the trial court as also the party and counsel concerned have been instrumental in prolonging the litigation, it is desirable that effective directions are given...." (iii) But the fact remains that the Presiding Officer, Mr. Nazir Fida has not shown any compliance of the directions of this court. He has shown no regards for express directions of this Court, as is apparent from the record. (iv) In the instant case, the Presiding Officer has totally disregarded the clear and express directions of this Court contained in order dated 25.4.2000. Not a single direction thereof has been observed by the Presiding Officer. Infact, the record suggests that it was the time gap between the date of conclusion of the final arguments and the date on which the files were posted for judgment, that gave an opportunity for the concerned party to move yet another transfer petition to further forestall pronouncement of judgment. For this unjustified non compliance of the express orders and directions of this Court, the matter be placed before the Lord Chief Justice for action against the said officer on Administrative side." 4. The appellant made a request for expunging of remarks aforenoticed. This stands declined. He has come in appeal. 5. For this unjustified non compliance of the express orders and directions of this Court, the matter be placed before the Lord Chief Justice for action against the said officer on Administrative side." 4. The appellant made a request for expunging of remarks aforenoticed. This stands declined. He has come in appeal. 5. The question as to whether ex parte remarks can be made and as to whether making of these remarks was essential for the disposal of the two petitions, referred to above, would be a matter which would have to be gone into, this is because, in the case reported as State of UP v. Muhammad Nain, AIR 1964 SC 703, which decision was approved by the Supreme Court in a later decision reported as R.K. Lakshmanan v. A.K. Srinivasan and another, AIR 1975 SC 1741, it was observed as under:- (i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (ii) Whether there is evidence on record bearing on that conduct justifying the remarks; and (iii) Whether it is necessary for the decision of the case, as an integral part thereof, to an imadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve." 6. Another decision of the Supreme Court reported as KP Tiwari v. State of Madhya Pradesh, 1994 Srinagar Law Journal 475, does deal with this aspect of the matter. The observations made by the Supreme Court in the above case in para 4 of the judgment are being quoted below :- We are, however, impelled to remind the learned Judge of the High Court that however anguished he might have been over the unmerited bail granted to the accused, he should not have allowed himself the latitude of ignoring judicial precaution and propriety even momentarily. The higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior courts. Our legal system acknowledges the fallibility of the judges and hence provides for appeals and revision. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. That is one of the functions of the superior courts. Our legal system acknowledges the fallibility of the judges and hence provides for appeals and revision. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a Judge who has not committed an error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occassions, the lower courts are not necessarily wrong and the higher courts always right. It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyer almost breathing down their necks more correctly upto their nostrils. They do not have the benefits of detached atmosphere of the higher courts to think cool and decide patiently. Even error however, gross it may look, should not, therefore, be attributed to improper motive. It is possible that a particular judicial officer may be consistently passing orders creating a suspicion of judicial conduct which is not wholly or even partly attributable to innocent functioning. Even in such cases, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occassions. The judges in higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary that when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other. It must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. No better device can be found to destroy the judiciary from within. The judges must, therefore, exercise self restraint. It must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. No better device can be found to destroy the judiciary from within. The judges must, therefore, exercise self restraint. There are ways and ways of expressing disapproval of the orders of the subordinate courts but attributing motives to them is certainly not one of them. That is the surest way to take the judiciary downhill". 7. There are number of other decisions which lay down the same proposition and it would not be apt to multiply this order with these judicial precedents. 8. In the present case, at the relevant time, the learned Single Judge noticed that there was an old dispute pending for more than 29 years. This and some other factors weighed with the learned Single Judge to make adverse remarks against the appellant. However, as to whether the delay of 29 years in deciding the case could be attributed to the appellant is a question which does require serious consideration . The appellant has submitted that he had to leave for Hyderabad along with his family because one of his relation i.e. his brother in law had died. If this explanation is to be believed then, can it be said that the appellant was responsible for the delay. The appellant had gone on leave and when he returned, he was disabled from pronouncing the judgment as the file stood summoned by the Third Additional District Judge. We are, thus, of the view that the adverse remarks which were exparte in nature should not have been made against the appellant. This has serious consequences; it affects the morale of the officer and again affects the system of administration of justice as such. No doubt, the appellant was permitted to put across his point of view but the explanation as given by him has not been accepted. It is precisely for this reason, the appellant has preferred this appeal. It be seen that the learned Single Judge while dismissing the Review petition preferred by the appellant has observed that the scope of review jurisdiction is limited to the extent to correct error on the face of the record or mistake which may cause failure of justice. It is precisely for this reason, the appellant has preferred this appeal. It be seen that the learned Single Judge while dismissing the Review petition preferred by the appellant has observed that the scope of review jurisdiction is limited to the extent to correct error on the face of the record or mistake which may cause failure of justice. It has further been observed that the appellant admitted that he did not comply with the direction given by this court and did not comply with the direction given by this court and did not pronounce the judgement. But the further explanation given by him that he had to proceed to Hyderabad alongwith his family due to the death of his brother in law and that after his return he was unable to pronounce the judgment because the record was summoned by a superior court has not been taken note of. 9. We are of the opinion that the scope of review or judicial review in such matters is to be dealt with in its wider perspective. When adverse remarks are made and when applications are preferred for expunging these remarks, then the parameters which are available for exercising review jurisdiction would not be, strictly speaking, applicable. The scope of review in such cases stands elaborated by the Supreme Court of India in the case reported as (2001) 3 SCC 54 K� a judicial officer. The observations made by the Supreme Court in para 11 of the Judgement are relevant and are being quoted below:- A Subordinate Judge faced with disparaging and undeserving remarks made by a court of superior jurisdiction is not without any remedy. He may approach the High Court invoking its inherent jurisdiction seeking expunction of objectionable remarks which jurisdiction vests in the High Court by virtue of its being a court of Record and possessing inherent powers as also the power of superintendence. The view is settled by the law laid down in Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1. However, it a similar relief is sought for against remarks or observations contained in judgment or order of the High Court the aggrieved Judicial officer can, in exceptional cases, approach this court also invoking its jurisdiction under Articles 136 and/or 142 of the Constitution. With the law laid down by this Court in Dr. However, it a similar relief is sought for against remarks or observations contained in judgment or order of the High Court the aggrieved Judicial officer can, in exceptional cases, approach this court also invoking its jurisdiction under Articles 136 and/or 142 of the Constitution. With the law laid down by this Court in Dr. Raghubir Saran and the State of UP v. Mohd Naim, AIR 1964 SC 703, it is well settled that the power to expunge remarks exists for redressing a kind of grievance for which the law does not provide any other remedy in express terms though it is an extraordinary power. Any passage from an order or judgment may be expunged or directed to be expunged subject to satisfying the following tests:- (i) that the passage complained of is wholly irrelevant/unjustifiable. (ii) that its retention on the records will cause serious harm to the persons to whom it refers; (iii) that its expunction will not affect the reasons for the judgment or orders." 10. The further observations made in para 9 and 13 of the judgment are also relevant and are also being quoted below:- 9 The courts do have power to express opinion, make observations and even offer criticism on the conduct of any one coming within their gaze of judicial review but the question is one of impelling need, justification and propriety. The following observation by Sulaiman, J. in Panchanan Banerji v. Upendra Nath Bhattacharji, AIR 1927 All 193 was cited with approval before this court in Niranjan Patnaik v. Sashibhusan Kar, (1986) 2 SCC 569 (SCC P. 576 para 23):- The High Court, as the Supreme Court of revision, must be deemed to have power to see that courts below do not unjustly and without any lawful excuse take away the character of a party or of a witness or of a counsel before it.� 13. It was so said by a Special Bench of three Judges presided over by Tek Chand, J. in Philip William Ravanshawe Harless v. Gladys Isabel Hardless, AIR 1942 Lah 82 (AIR Headnote) : A passage which is not necessary to the conclusion of the judge nor even necessary to his argument and is likely to militate seriously against partys earning a living in his profession should be expunged from the judgment.� 11. In view of the above, as indicated above, we are of the opinion that so far as scope of judicial review in such matters is concerned, it is wide. The appellant in the present case had given a valid explanation. He had submitted that he had gone to Hyderabad alongwith his family to attend the funeral ceremony of his brother in law. The further fact that after his return, he was disabled from pronouncing the judgment as the file was summoned by a superior court is also required to be taken note of. Therefore, to say that the appellant was responsible for the long delay of 29 years and putting the entire blame on him would not be apt. We are accordingly of the view that the adverse remarks noted above made against the appellant are required to be expunged and are expunged accordingly. Disposed of as such.