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Ramchand Nihalchand Advani Vs. Anandlal Bapalal Kothari and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 166 of 1961
Judge
Reported inAIR1962Guj21; (1961)GLR635; (1961)0GLR165
ActsConstitution of India - Article 226; Code of Civil Procedure (CPC) , 1908 - Order 1, Rule 1; Bombay High Court (Appellate Side) Rules, 1960 - Rule 1; Bombay High Court (Original Side) Rules - Rule 623; Bombay Municipal Boroughs Act, 1925 - Sections 26 and 41
AppellantRamchand Nihalchand Advani
RespondentAnandlal Bapalal Kothari and anr.
Appellant Advocate S.M. Shah, Adv.
Respondent Advocate N.V. Karlekar, Adv.
DispositionPetition allowed
Cases ReferredManindra Nath v. Municipal Commissioner of Barangore Municipality
Excerpt:
civil - resignation - article 226 of constitution of india, order 1 rule 1 of code of civil procedure, 1908, rule 1 of bombay high court (appellate side) rules, 1960, rule 623 of bombay high court (original side) rules and sections 26 and 41 of bombay municipal boroughs act, 1925 - petitioners (councillors) were also members of committee - sent letter of resignation to x (president of municipality) as protest against manner of implementation of certain scheme - letter treated as letter of resignation of councillors - petitioners contended that letters should be treated as resignation from members of committee - petition filed to direct respondent to desist from preventing petitioners from acting as councillors - letter of resignation was unambiguous and x failed to clear ambiguity - held,..........appellate or otherwise, administering justice in any type of civil matters. 7. the scheme of the civil procedure code, and, in particular, section 9 of that code, show that the first of the above definitions is more appropriate for purposes of the c. p. code, otherwise casts panchayats would be courts of civil judicature. if the first meaning is given to the expression 'court of civil judicature', then high courts dealing with writ petitions would not be courts of civil judicature, because writs are not civil rights but rights created by the constitution. a civil suit does not lie for the issue of a writ. although the high court is a court of civil judicature, when deciding certain matters, it is not a court of civil judicature when deciding writ petitions.8. if high courts when.....
Judgment:

Raju, J.

1. This is a writ petition filed by three persons praying for an appropriate writ to direct the first respondent, who is the President of the Baroda Borough Municipality, to desist from preventing the petitioners from acting as councillors of the Baroda Municipality.

2. The facts relevant for the purpose of deciding this petition are as under - The three petitioners are councillors of Baroda Borough Municipality and also members of the Sanitary Committee of the Baroda Borough Municipality. On 9-3-61, they sent a letter of resignation from the Sanitary Committee addressed to the President as a protest against the manner of implementation of the Scheme of compulsory vaccination for small-pox. This letter was treated by the President as a letter of resignation as councillors and not as a letter of resignation from the Sanitary Committee of which the three petitioners happened to be members. On 10-3-61, the President wrote a letter to the three petitioners acknowledging receipt of their letter dated 9-3-61 and entertaining certain hopes, although they were going out of the Municipality. The three petitioners sent individual letters on 11-3-61, asserting that they had not resigned from the Municipality but they had resigned only form the Sanitary Committee. On these facts, the petitioners approached the High Court for an appropriate writ to direct respondent No. 1, the President of the Municipality, not to take any steps on the assumption that the letter of resignation dated 9-3-61 is a letter of resignation from the Municipality and not from the Sanitary Committee of the Municipality.

3. A preliminary objection is raised on behalf of the respondents that in these circumstances, a joint petition is not maintainable, and ho relied on Muhammad Ibrahim v. Deputy Commercial Tax Officer, Pudukotlal, AIR 1956 Mad 626, and In re, A. Gopalakrishnarao, (S) AIR 1957 Andh Pra 88. In reply, it is contended by the learned counsel for the petitioners that the contention that a Joint petition does not lie has not been pleaded in the reply to the petition. But, as the contention relates to the form of the petition itself, and as it can be decided by looking at the petition alone, we allow this point to be argued.

4. On behalf of the petitioners, it is urged that Order 1, Rule 1, C.P. Code, applies to writ petitions filed in the High Court. To decide this point, it is necessary to consider first whether a High Court when dealing with writ petitions is a Court of Civil Judicature, because the preamble to C. P. Code provides that the C. P. Code consolidates and amends the law of procedure relating to Courts of Civil Judicature, This again turns upon the questions whether when deciding writ petitions the High Court is dealing with civil matters or is enforcing civil rights.

5. The word 'civil' is not defined in the C. P. Code. The distinction between, civil and criminal is thus explained by Salmondr In Salmond onJurisprudence, Eleventh Edition by Glanvile Williams, it is observed as follows;--

'Civil justice is administered in one set of courts, criminal justice in a somewhat different set. The outcome of the proceedings, too, is generally different. Civil proceedings, if successful, result in a judgment for damages, Or in a judgment for the payment of a debt or (in a penal action) a penalty, or in an injunction or decree of specific restitution or specific performance, Or in an order for the delivery of possession of land, or in a decree of divorce, or in an order of mandamus, prohibition, or certiorari, or in a writ of habeas corpus, Or in other forms of relief known distinctively as civil. Criminal proceedings, if successful result in one of a number of punishments, ranging from hanging to a fine, or in a binding over to keep the peace, release upon probation, Or Other outcome known to belong distinctively to criminal law.'

It is true that if an injunction is granted in a civil proceeding, and it is disobeyed, the person disobeying the order may be imprisoned. Yet the proceeding for an injunction is a civil proceeding and not criminal. Salmond also refers to other writers who have stated that the object of civil proceedings is to enforce rights, while the object of criminal proceedings is to punish wrongs. This principle of distinction is reasonable and sound and we can think of no better principle to explain the distinction between civil and criminal matters. It is true that Article 132 of the Constitution contemplates matters which are neither civil nor criminal. It is not necessary now to give illustrations of such matters. But it would be reasonable to hold that writ petitions are civil matters.

6. The next question is whether the High Court dealing with writ petitions is a Court of Civil Judicature. The expression 'Court of Civil Judicature' is not defined. But it may have three different meanings:--

(1) A Court, (whether appellate or otherwise) administering justice in matters relating to enforce-ment of civil rights or to suits of a civil nature within the meaning of Section. 9, C. P. Code.

(2) A Court, whether appellate or otherwise, administering justice generally in civil matters.

(3) A Court, whether appellate or otherwise, administering justice in any type of civil matters.

7. The scheme of the Civil Procedure Code, and, in particular, Section 9 of that Code, show that the first of the above definitions is more appropriate for purposes of the C. P. Code, otherwise Casts Panchayats would be Courts of Civil Judicature. If the first meaning is given to the expression 'Court of Civil Judicature', then High Courts dealing with writ petitions would not be Courts of Civil Judicature, because writs are not civil rights but rights created by the Constitution. A civil suit does not lie for the issue of a writ. Although the High Court is a Court of Civil Judicature, when deciding certain matters, it is not a Court of Civil Judicature when deciding writ petitions.

8. If High Courts when deciding writ petitions are not Courts of Civil Judicature for purposes of Civil Procedure Code, then Order 1 Rule 1 of C. P. Code would not apply to the procedure of writ petitions. Section 141 C. P. Code providesthat the procedure provided in that Code as regards suits shall be followed as far as it can be made applicable, in all proceedings in any Court ot Civil Jurisdiction.

9. Although Gujarat High Court has no original Civil Jurisdiction, under Rule 15 of the High Court Charter it can be invested with such a jurisdiction by tile State Legislature as provided in Articles 11 and 13 of the Letters Patent. Article 226 of the Constitution has invested High Courts with original civil jurisdiction in the matter of writs. Assuming that when deciding writ petitions High Courts are Courts of civil jurisdiction, it must be noted that in the C. P. Code there are special pro-visions relating to the procedure in High Courts.

10. Section 122, Civil Procedure Code provides that High Courts may make rules regulating their own procedure and may by such rules annul, alter, or add to all or any of the rules in the First Schedule, Section 129, C. P. Code provides as follows:--

'Notwithstanding anything in this Code, any High Court for a Part A State or a Part B State may make such rules not inconsistent with the Letters Patent or order or other law establishing it to regulate its own procedure in the exercise of its original civil jurisdiction as it shall think fit, and nothing herein contained shall affect the validity ot any such rules in force at the commencement of this Code.'As already observed, Article 226 of the Constitution invested all High Courts with original civil jurisdiction. Section 4(1), Civil Procedure Code also provides as under:-- 'In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction or power conferred, or any special form of procedure prescribed by or under any other law for the time being in force.'

By Article 37 of the Letters Patent the High Court has got power to frame rules relating to the civil procedure in all proceedings in civil cases which may be brought before the High Court. A proviso is also included in Article 37, which says:

'Provided always that the said High Court shall be guided in making such rules and orders as far as possible by the provisions' of the Code of Civil Procedure, being an Act passed by the Governor General in Council, and being Act No. VIII of 1859, and the provisions of any law which has been made amending or altering the same by competent legislative authority for India.' The High Court has also made special rules relating to the procedure, which are to be found in Chapter XVII of the Bombay High Court Appellate Side Rules, I960, These Rules are framed under Article 225 of the Constitution. The rule making power of the High Court in regard to matters of procedure in civil proceedings is also to be found in other provisions already quoted earlier. The rules framed by the High Court would therefore supersede the rules under the Civil Procedure Code. Rules of procedure in the matter of writs would, therefore, be govered by the Special Rules relating to writ petitions framed by the Bombay High Courtand not by Order 1, Rule 1 of (he Code of Civil Procedure. Rule I of these Rules reads as follows:

'Every application for the issue of a direction, order or writ under Article 226 of the Constitution shall, if the matter in dispute is or has arisen substantially, outside Greater Bombay, be heard and disposed of by a Division Bench to be appointed by the Chief Justice. The application shall set out therein the relief sought and the grounds on which it is sought. It shall be solemnly affirmed or supported by an affidavit. In every such application the applicant shall state whether he has made any other application to the Supreme Court or High Court in respect of the same matter and how that application has been disposed of....' From this rule it would appear that there must be a separate application by every applicant for the main relief sought. See also Rule 623 of the Original Side Rules of the Bombay High Court where it is stated that 'the application shall set, out the relief sought and the grounds on which it is sought.'

11. Section 13 of the Bombay General Clauses Act provides that in all Bombay Acts, unless there is anything repugnant in the subject or context - (a) words importing the masculine gender shall be taken to include females; and (b) words in the sin-gular shall include the plural, and vice versa. But this rule does not apply to rules framed by a rule making authority. As already stated, Rule 1 of the rules framed by the Bombay High Court contemplates a separate application for every main relief sought. The main writ petition should seek only one main relief apart from interlocutory relief, which may be sought in a separate application. In respect of every main relief sought or claim made therefore there must be a separate application. Section 13 of the Bombay General Clauses Act does not apply to rules framed by the Bombay High Court under the rule making powers under Article 225 of the Constitution or Article 37 of Letters Patent or Sections 122 and 129 of Civil Procedure Code. It would, therefore, appear that for every main relief sought in the matter of writ application, there must be a separate application. The same view has been taken in Halsbury, Vol. IX, (Second Edition), P- 783, para 1325, wherein it is observed as under:--

'Two or more persons cannot join in a single application for a writ of mandamus to enforce separate claims. There must be separate applications for separate writs, and this although the several applicants are successors in the office in respect of which the claims arise-'

Halsbury has relied on an English decision reported in the King v. City of Chester, (1694) 87 ER 487. This case was referred to' in United Motors (India) Ltd. v. State of Bombay, 55 Bom LR 246 and was not dissented from. But the facts in the Bombay case were, however, different and have to be distinguished from the facts of the instant case, because in the Bombay case the same relief that the Bombay Sales Tax Act was ultra vires of the State Legislature was sought by the various petitioners. It is not a case of separate reliefs but the same relief being sought by a number of petitioners. The view that we have taken has been taken in AIR 1956 Mad 626, that Civil Procedure Code cannot be extended to writ petitions. It is there observed as under:--

'Again the fact that the relief prayed for by the several petitioners, -- each of whose individual right is alleged to have been invaded improperly by the impugned order -- is grounded on a common objection -- the validity of the legislation, or the rule or some order interpreting or enforcing the statute or the rule does not also afford any basis for a joint writ petition by several petitioners aggrieved by similar orders. Each, of them has to file independent petition - paying separate court-fee on each with separate vakalat etc. In these cases I have directed the petitioner to amend the petition so as to retain only one petitioner on the record and as this has been done I have admitted the writ petitions.'

This case was followed in (S) AIR 1957 Andh Pra 88, by a single Judge of the Andhra Prdesh High Court. But the learned counsel for the petitioner relies on A. Adinarayana v. State of Andhra Pradesh, AIR 1958 Andh Pra 16 where it is observed:

'An application under Article 226 of the Constitution of India is a proceeding in a Court of civil jurisdiction. Section 141 Civil P. C. is therefore directly attracted and the provisions of Orders 1 and 2 of the Code can be invoked as far as they can be made applicable to the proceeding in a writ application under Article 226. Ordinarily, two or more persons cannot join in a single petition to enforce separate claims. But where the right to relief arises from the same act or transaction and there is a common question of law or fact, or where, though the right to relief claimed does not arise from the same act or transaction, the petitioners are jointly interested in the causes of action, one petition is maintainable at their instance.'

12. We have already held that the Civil Procedure Code would not be applicable to proceedings in writ petitions, But the rules contained in Civil Procedure Code would be superseded by the Rules of the Bombay High Court. In the Andhra Pradesh case it is not clear whether any rules had been-framed by the High Court with regard to the procedure of writ petitions. A judgment of the Calcutta High Court in Manindra Nath v. Municipal Commissioner of Barangore Municipality, (S) AIR 1956 Cal 291, has also been relied upon by the learned counsel for the petitioner. In that case, as the rule was discharged, the observations would be obiter as held in In re (S) AIR 1957 Andh Pra 88. But even in the Calcutta case, it has been held that Order 1, Civil Procedure Code, may be followed analogously. In the absence of special rules framed by the High Court, the rules contained in Order 1, Rule 1, C. P. Code, would apply in terms as already observed by us. We, therefore, hold that the rules under Order 1, Rule I, have been superseded by the special rules framed by the High Court.

13. It is also possible to argue that even if Order I, Rule 1, C. P. Code, applies to writ petitions, that Rule is not as wide as it may appear to be. The expression used is

'plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or serins of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separatesuits any common question of law or fact would arise'.

Does this expression exhaust all kinds of rights to relict? Does it include the case of distinct rights to distinct reliefs existing independently in plaintiffs? Does the wording of Order 1, Rule 1, have the same meaning if it had read as all persons may be joined in one suit as plaintiffs if such persons brought separate suits any common question of law or fact would arise'? Does the word 'severally' mean distinct but with a common origin? Has the expression 'series of acts or transactions' a special meaning? Has a distinction to be made between jointly, severaliy or in the alternative and the case where the rights to reliefs are clearly distinct. If Order 1, Rule 1 also covers the case of distinct rights to distinct reliefs, was there any need to use the expression 'whether jointly, severally or in the alternative'? Does the expression 'any right to relief' embrace distinct right? to distinct reliefs? But it is not necessary to discuss these points further having regard to the view already taken by us.

14. Rules have been framed by the High Court in regard to petitions. They are to be found in Chapter XVII of the Bombay High Court Appellate Side Rules, I960, and in Rules 623 to 632 in Chapter XXXI of the Original Side Rules of the Bombay High Court. Rule 623 in the Original Side Rules provides that the application shall be by petition setting out therein the relief sought and the grounds on which it is sought....The petitioner shall state ....The petitioner shall move for a Rule Nisi in open Court. In these Rules also for the reasons already stated the singular would not include the plural number. Whichever rules are applied, two or more persons cannot join in a single application for two separate reliefs by way of writs. The learned counsel for the petitioners has therefore stated that the names of petitioners Nos. 1 and 2 should be struck off from the petition which has been made by the three petitioners jointly and this petition should therefore be treated as filed by petitioner No.3 alone. At the request of the learned counsel for the petitioner, the names of the first two petitioners would be struck off from the petition as he wants to file two separate petitions on behalf of the 1st and 2nd petitioners.

15. Now, we will turn to the merits of the petitioner. The letter of resignation given by the three persons reads as follows:--

'It has been decided to introduce a compulsory small-pox innoculation in Baroda City. The Sanitary Committee was not given (any) indication about it. As a protest against this we tender our resignation which you will accept.'

The learned counsel for the respondents contends that this letter of resignation is a letter of resignation from the Municipality, as there is no provision in the Bombay Municipal Boroughs Act, 1926, with regard to the resignation from one of the committees of the Municipality and that the only provision in that Act relating to resignation is to be found in Section 26 of the Act, which provides that any councillor may resign his office by giving notice in writing to that effect to the President. Section 41 of the Bombay Boroughs Municipal Act refers to casual vacancies occurring in a standingcommittee or in a committee appointed under Section 38 and vacancies occurring in any other committee, and provides for the procedure to be followed in filling up such vacancies. The Act does contem-' plate resignation and other types of vacancies even in regard to the membership of committees of the Municipality. In any case, it is clear that the letter of resignation is not an unambiguous letter of resignation. It is only where there is an unambiguous letter of resignation, that Section 26 would come into operation. If there was any ambiguity in the letter of resignation addressed to the President, the President should write to ihe petitioners to explain and clear up the ambiguity. This has not been done and the President has treated that letter of resignation as a letter of resignation of the three persons as councillors of the Municipality. The President, in our opinion, was wrong in doing so, because in our opinion the letter was not unambiguous and does not show that the resignation was a resignation from membership of the council of the Municipality. The President was, therefore, obviously in error in informing the Collector that a vacancy had already occurred in the membership of the Council of the Municipality. The President was, therefore, in our opinion, obviously in error in proceeding under the assumption that the petitioner has resigned from the council of the Municipality.

16. We therefore order that a writ should issue restraining respondent No. 1 from proceeding on the assumption that the petitioner is not a member of the council of the Municipality. The President is also directed not to restrain the petitioner from continuing to work as a councillor of the Municipality in the present circumstances.

17. The learned counsel for the petitioner says that he withdraws his allegations of mala fide contained in the petition.

18. In vew of the special circumstances, there will be no order as to costs.

Mehta, J.

19. I would like to add a few words of my own in regard to the preliminary point. I agree in the main conclusion that for vindicating every right or claim a separate petition should be made. I also agree that O. 1, R. 1 of C.P. Code does not apply to writ petitions by reason of the rules made by this Court. I would therefore refrain from expressing any opinion on the facts of this petition whether in case O. 1, R, 1 C. P. Code applies it would be within its terms; for that would depend on the question whether the right or claim in each of the petitioners arose out of the same act or transaction Or scries of acts or transactions. For if the right or claim arose out of the same act or transaction or scries of acts or transactions arid if separate acfions were brought by them and if in such a case common questions of law or fact would arise, then the joinder of the plaintiffs would be in order under O. 1, R. 1, C.P. Code notwithstanding the tact that the claim or the right in question was severally vested in such of them or in other words distinctly and individually vested in each of the joining plaintiffs. But I would refrain from expressing any view whether the present petition as filed would be covered by the provisions of O. 1, R. 1 C.P.C. they applied. I would also like to guard myself against being Understood to entertain any view that in a case of a single right or claim if more reliefs than one are prayed for, there should be separate petitions for every such relief. The rest of a separate petition is the 'singleness' of a right or claim which is to be vindicated and not the number of reliefs asked for. The question in this form does not arise in this petition. But as this question has been referred to in the main judgment by my learned brother, for whose scholarship, erudition and experience I have the highest respect, I should respectfully like to clarify my own views on this aspect of the question. The preliminary question that arises in this petition is only whether in a case where several rights are vested in several plaintiffs whether they can join in one petition on the alleged ground that these rights arise out of the same transaction or series of acts or transactions as contemplated under O. 1, R. 1 of C. P. Code and my answer in the negative is restricted only to this position, namely that the right or claim that is the subject matter of the petition is not a single one but there are several rights or claims vested in the plaintiffs severally. On merits I agree with the order passed by my learned brother.


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