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Govindrao Atmaramji Warjurkar and anr. Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Apln. No. 1259 of 1975
Judge
Reported inAIR1976Bom383; 1977MhLJ320
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC), 1908 - Order 1, Rule 1
AppellantGovindrao Atmaramji Warjurkar and anr.
RespondentThe State of Maharashtra
Appellant AdvocateV.R. Manohar, Adv.
Respondent AdvocateM.M. Qazi, A.G.P.
Excerpt:
.....1172 of 1975. it may be mentioned that both before this bench as well as in bombay, several petitions challenging the provisions of this ordinance and thereafter the debt relief act were filed. the corporation of the city of nagpur was considered and there it was pointed out that upon the preponderant view taken in judicial decisions, the bench had proceeded to examine whether the requirements of order 1, rule 1, were satisfied or not. , in a given case, may be applied provided all the conditions of that rule were fully satisfied without any difficulty in the matter of giving relief and adjudicating the cause. had this been treated by this court to be a joint petition at the stage of making interlocutory orders like stay or injunction, the election to one petitioner could have..........to be repelled. it was further found that the proceedings under article 226 before the court were civil proceedings. as to applicability of the provisions of section 141 of the code of civil procedure, it was observed that in the opinion of the bench it was not possible to decide the controversy between the parties only on the applicability of section 141 of the code of civil procedure, that section 141 of the code itself does not make all the provisions of the code applicable and it shows that the procedure of the code has to be followed as far as it can be made applicable. a reported decision of another bench of this court rendered in special civil application no. 109 of 1960 decided on 11-8-1960, the mahatma fuley vegetable and fruit market association v. the corporation of the city.....
Judgment:

Masodkar, J.

1. The two petitioners filed the present petition on September 30, 1975, challenging the Ordinance No. VII of 1975 as void and ultra vires as well as unconstitutional and beyond the Legislative competence and the powers of the State Legislature. They sought ad interim writs regarding the enforcement of those provisions. Petitioners alleged that they are money-lenders by profession and carry on the business of money-lending and are independently registered under the Bombay Moneylenders Act. They held independent licences. This joint petition was entertained on 1-10-1975 and there being several such petitions, a common order was made as passed in Special Civil Application No. 1172 of 1975. It may be mentioned that both before this Bench as well as in Bombay, several petitions challenging the provisions of this Ordinance and thereafter the Debt Relief Act were filed. In several petitions more than one money-lenders were joined as petitioners. As the matter being urgent, one set of court-fee which was affixed to such petition was held sufficient and by way of concession it was directed that qua each additional petitioner, court-fee b payable on his independent petition should be got deposited in the office of this Court and question of the appropriation would be decided afterwards.

2. It may be mentioned that validity of the provisions of law which were in challenge had been eventually decided by the Bombay Bench and the matter has been taken up by leave before the Supreme Court.

3. This petition has been placed before us today for directing the appropriation of the deposit of court-fee so deposited.

4. At the hearing Mr. Manohar appearing for the petitioners urged that such a joint petition was tenable in view of the provisions of Order 1, Rule 1, Civil Procedure Code and court-fee paid in one set should, therefore, be treated as validly paid and the deposit be directed to be refunded. Alternatively he submitted that there should be election available to these two petitioners to pursue the petition in the name of one only. He relied on the question of tenability of joint petition following the decisions of the several High Courts, being : AIR1958AP16 , A. D. I. Narayana v. State of A. P.; : AIR1964All386 , Abdul Oaum v. Keshav Saran; : AIR1956Cal291 , Manindra Nath v. Baranagore Municipality; , Ram Kishan v. State; , Nathamal v. Commr., Civil Supplies; : AIR1957MP109 , Mahabir Pd. v. B. S. Gupta and 1963 Mah LJ Note 8, Jobiruddin v. Factory Manager, Model Mills.

5. As against this, Mr., Qazi appearing for the State urged that these are in fact two petitions filed by two individuals, having separate cause of action and claim to relief, there being no identity of interest and that the deposit taken by the Court should be appropriated towards the court-fees as payable on two petitions. The learned counsel counters the submissions on behalf of the petitioners by relying on the decisions, being : AIR1960All366 , Uma Shankar Rai v. Divisional Superintendent, Northern Railway; : AIR1958Pat653 , Bishwarajan v. Secretary, R. K. Mission and AIR 1956 Mad 626, Mohammad Ibrahim v. Deputy Commercial Tax Officer.

6. To us it appears that the question is not open as far as the tenability and institution of such applications are concerned. The whole matter was considered by the Division Bench of this Court including some other decisions on which reliance is placed, in Civil Revn. Appln. No. 108 of 1968 (in Special Civil Apln. No 200 of 1968) decided on March 12, 1968: Firm Prekh Brothers v. The Administration of the City of Nagpur. The facts appearing in the order indicate that nine petitioners were questioning the issuance of the notices under the Bye-laws framed under the provisions of the City of Nagpur Corporation Act, 1948. In that petition it was contended that the provisions of Section 114(i) of the said Act were unconstitutional and should be declared as such. Similarly, rules framed under the Bye-laws being Rules 43, 44, 45 and 47 of the Octroi Rules were challenged as invalid. After noticing the several decisions including that of the High Courts and the Supreme Court as to the nature of the jurisdiction exercised by the High Court, the Bench observed that it was clear that the jurisdiction of the High Court in proceedings under Article 226 of the Constitution, though original in character, as contrasted with its appellate and revisional jurisdiction, is in the nature of extraordinary original jurisdiction and that it is on that view of the matter that the contention of the appellant that a petition under Article 226 is a continuation of the proceedings under any statute the order passed under which was challenged, was required to be repelled. It was further found that the proceedings under Article 226 before the Court were civil proceedings. As to applicability of the provisions of Section 141 of the Code of Civil Procedure, it was observed that in the opinion of the Bench it was not possible to decide the controversy between the parties only on the applicability of Section 141 of the Code of Civil Procedure, that Section 141 of the Code itself does not make all the provisions of the Code applicable and it shows that the procedure of the Code has to be followed as far as it can be made applicable. A reported decision of another Bench of this Court rendered in Special Civil Application No. 109 of 1960 decided on 11-8-1960, The Mahatma Fuley Vegetable and Fruit Market Association v. The Corporation of the City of Nagpur was considered and there it was pointed out that upon the preponderant view taken in judicial decisions, the Bench had proceeded to examine whether the requirements of Order 1, Rule 1, were satisfied or not. The Bench quoted from the earlier judgment the following passage:

'Though, in a sense, the relief claimed by each of the applicants is distinct and separate, namely, quashing of order issued to him cancelling his licence, it is averred by them that these orders are issued in consequence of the resolution of the Corporation dated 3rd December 1959. The relief claimed in the instant case thus arises out of the same act, namely, the resolution of the Corporation. Had these petitioners filed separate applications, these applications would have involved a decision of a common question of law or fact, that is, the legality and validity of the resolution dated the 3rd December 1959 passed by the Corporation.'

And upon this the joint petition at the instance of all licencees was held untenable. The Division Bench then in that case considered whether the terms of Order 1, Rule 1, Civil P. C., were answered by the petition jointly filed by the nine petitioners. For application of Order 1, Rule 1, the Court stated that the right to relief must flow or arise out of the same act or series of acts and secondly it must give rise to common question of law or fact. Having taken the view, it was held that each of the petitioners was affected separately and such a joint petition was not tenable.

7. The principles underlying the aforesaid decision of this Court can be summed up as follows:-

Firstly, the writ proceedings arising out of civil causes are original in nature entertained by this Court in its extraordinary jurisdiction conferred upon it by the Constitution.

Secondly, to these proceedings the Code of Civil Procedure by itself is not applicable and may be applied as far as possible. The proceedings not being suit as contemplated by the Code, the provisions regarding suits are not attracted and the petitions to this Court should mainly be based on the individual claim or right asserted by the concerned petitioner.

Thirdly, for the purpose of two or more persons joining together to initiate petition, the requirements of Order 1, Rule 1, Civil P. C., in a given case, may be applied provided all the conditions of that rule were fully satisfied without any difficulty in the matter of giving relief and adjudicating the cause.

Lastly above all, the normal rule emphasised by the decision is that this extraordinary remedy is for the enforcement of the individual grievance of the petitioner and that, though there may be similar grounds raised for the purposes of the petition, each of the petitioners would be treated as aggrieved independently and will have to file separate petition.

8. Applying these tests and emphasising that these proceedings are not in the nature of suit, it is obvious that the two petitioners before us are independently aggrieved in the matter of their business which is independent and separate from each other by the provisions of the Ordinance which is impugned and against which reliefs are sought by them. It is indeed clear that there is no identity of business or the cause and each petitioner must be treated as seeking independent remedy under Article 226 of the Constitution before this Court. The petition, therefore, is not a joint petition filed by two persons but two petitions combined in one. Had this been treated by this Court to be a joint petition at the stage of making interlocutory orders like stay or injunction, the election to one petitioner could have been provided for. For all purpose the Court directed deposit of the court-fee so as to determine the nature of the petition and deferred the question of appropriation of that deposit towards the court-fee. That being the plain position available on record and upon clear construction of the nature of the petition, it indeed follows that the deposit made on behalf of each of the petitioners should be appropriated towards the court-fee payable by each the petitioners had he filed independent petition.

9. This by itself is enough to negative whatever was submitted on behalf of the petitioners with regard to the appropriation of the court-fee or further seeking election at this stage to restrict the petition to one out of the two.

10. In the result, we direct that the deposit taken from each petitioner in these petitions should be appropriated towards court-fee on the basis that each petitioner had filed his petition and the document represents independent petitions jointed together.

11. Copy of this order may also be sent to Bombay Office.

12. Order accordingly.


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