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Natvarlal M. Badiani and anr. Vs. Jenambai Amad - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberMisc. Civil Appl. No. 260 of 1982, converted into Special Civil Appln. No. 3487 of 1982
Judge
Reported inAIR1983Guj123; (1982)2GLR727
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 47, Rule 3; Constitution of India - Article 227; Contempt of Courts Act, 1971 - Sections 15(2); Code of Criminal Procedure (CrPC) , 1898 - Sections 561A
AppellantNatvarlal M. Badiani and anr.
RespondentJenambai Amad
Advocates: A.H. Mehta, Adv.
DispositionPetition allowed
Cases ReferredManohar Lal Chopra v. Raj Bahadur Rao Raju
Excerpt:
.....the other typographical errors which report was to be submitted by april 29, 1982. 4. the learned assistant judge in his report, inter alia, stated that some false averments have been made in the present petition regarding the learned judge calling the junior of petitioner no. 1 as well as his junior advocate appeared to be guilty of professional conduct by making false averments in the petition and by falsely verifying it and supporting it by false affidavits. i, therefore, am not satisfied with the apology tendered by shri n. dave would not have or could not have typed application for review on her own because drafting requires a legal skill, i am, therefore, not satisfied that she committed any mistake while typing the application. , and wherever the ends of justice may..........the learned assistant judge for review of the said order on dec. 22, 1981 which was numbered as review application no. 6/81. petitioner no. 2 was represented by petitioner no. 1 as his advocate in the said review application. it is an admitted position that there were many typographical errors in the said application. one such error which has offended the learned judge was just in the opening part after the cause title therein. the said review application opened with a prayer which read as under:'may it please your dishonour'it is not in dispute that the junior advocate of petitioner no. 1 corrected the errors in the said review application. unfortunately, however, he missed to correct the aforesaid error in the opening part of the application. the review application came to be.....
Judgment:
ORDER

B.K. Mehta, J.

1. The comedy of inadvertent error is the real cause in this miscellaneous civil application moved by the petitioners herein who are respectively a practising senior advocate in the District Court at Jamnagar and the courts subordinate thereto and his client who was original opponent of Miscellaneous Civil Application No. 52 of 1981 on the file of the Court of learned Assistant Judge, Jamnagar filed by the wife of petitioner No. 2 for the custody of their child. In the said custody proceedings petitioner No. 2 moved the Court for raising preliminary issue about the competency of the main application. This he did by presenting an application to the Court on Nov. 13, 1981 vide Ex, 27. The learned Assistant Judge by his order of Nov. 27, 1981 rejected the said application and refused to raise the preliminary issue as prayed for. Petitioner No. 2, therefore, moved the learned Assistant Judge for review of the said order on Dec. 22, 1981 which was numbered as Review Application No. 6/81. Petitioner No. 2 was represented by petitioner No. 1 as his Advocate in the said review application. It is an admitted position that there were many typographical errors in the said application. One such error which has offended the learned Judge was just in the opening part after the cause title therein. The said review application opened with a prayer which read as under:

'MAY IT PLEASE YOUR DISHONOUR'

It is not in dispute that the junior Advocate of petitioner No. 1 corrected the errors in the said review application. Unfortunately, however, he missed to correct the aforesaid error in the opening part of the application. The review application came to be rejected by the order of the learned Assistant Judge of Feb. 25, 1982. Before parting with the matter, the learned Assistant Judge, in para. 5 of his order, observed as under :

'5. Before parting with this matter, I would like to make a few observations about the behaviour of the applicant. Because the order below his application Ex. 27 has gone against him, he has gone (and his advocate also) to the extent of committing contempt of this Court by using words 'MAY IT PLEASE YOUR DIS HONOUR'. In his application for review which has been filed by him and which has been drafted by his advocate he has made necessary corrections in his application Ex. 1 wherever there was mistake and/or typographical error. When all other typographical errors have been corrected, it is not possible to conclude or say that it might be the typographical error while using these words. Had it been so, then certainly it could have been corrected when all other errors have been corrected. In typographical error, there may be a mistake in spelling but word 'DIS' as a prefix of 'HONOUR' would certainly not appear and/or would not be typed by mistake. Thus it seems that the word 'DIS' as prefix of 'HONOUR' has been intentionally used to abuse and insult and lower down the authorities of this Court.'

2. The petitioners have, therefore, moved this Court under Article 227 of the Constitution read with Section 151 of the Civil P. C. for expunging and/or deleting from the order the aforesaid remarks.

3. When this matter was placed before me for admission, by an order of April 19, 1982, liberty was given to the petitioners to move the learned Assistant Judge offering unconditional apology for the error which had remained uncorrected in the review application, and the learned Assistant Judge was directed; to report to this Court, if he is satisfied about the bona fide of the petitioners that the said error was inadvertently overlooked while correcting the other typographical errors which report was to be submitted by April 29, 1982.

4. The learned Assistant Judge in his report, inter alia, stated that some false averments have been made in the present petition regarding the learned Judge calling the junior of petitioner No. 1 and asking him to make corrections, and that the said junior Advocate Mr. Dhruv has filed a false affidavit in a fudicial proceeding before the Court and in his opinion, therefore, petitioner No. 1 as well as his junior advocate appeared to be guilty of professional conduct by making false averments in the petition and by falsely verifying it and supporting it by false affidavits. The learned Judge has thereafter referred to the two transfer applications made by two different clients of petitioner No. 1 in Nov. and, Dec. 1981 seeking transfer of their appeals from the Court of the learned Assistant Judge by making allegations against him about his being prejudiced. In the circumstances, therefore, the learned Assistant Judge stated that it would not be possible that he would call Mr. Dhruv, Junior Advocate of petitioner No. 1 for corrections as stated in the affidavit of Mr. Dhruv in this Court. He, therefore, concluded as under in paras. 8, 9 and 10 :

'8. Looking to the above background and circumstances, it is not possible to believe or accept that the error of word 'DIS HONOUR' was a typographical error and/or that it was inadvertently made and/or inadvertently overlooked while correcting the other mistakes. I, therefore, am not satisfied with the apology tendered by Shri N. M. Badiani.

9. Shri N. M. Badiani's typist Jayshree B. Dave would not have or could not have typed application for review on her own because drafting requires a legal skill, I am, therefore, not satisfied that she committed any mistake while typing the application. Even if it be assumed that it was so, it was a gross carelessness which cannot he overlooked and it constitutes misconduct in discharge of professional duties. From the advocate Court expects much higher standard of conduct, care and caution.

10. If their Lordships deem it fit to take necessary actions, the same may be taken against them under Section 15(2) of the Contempt of Courts Act, 1971.'

5. Permission was granted to the learned Advocate for the petitioners to convert the aforesaid miscellaneous civil application into special civil application, and also to delete the name of the opponent since no relief is asked for against her, and because this Court is moved also under Section 151 of the Civil P. C. for exercising its inherent powers to expunge the remarks made against the petitioners.

6. I am of the opinion that the remarks made by the learned Assistant Judge in para 5 of his order of Dec. 22, 1981 rejecting the review application were not relevant for deciding the controversy between petitioner no. 2 and his wife which was pertaining to the custody of their child. It is a settled legal position that power under Section 151 of the Civil P. C. to expunge remarks made by a Judge of a subordinate Court is an extraordinary power and should be exercised only when a clear case is made out, and, the question is not whether another Judge would have made these particular remarks but whether the Judge in making those remarks has acted improperly or not (vide: State of Assam v. Ranga Muhammad AIR 1967 SC 903). In the context of Section 561-A of the Criminal P. C. 1898, the Supreme Court in Raghubir Saran v. State of Bihar, AIR 1964 SC 1, ruled that every High Court as the highest Court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice, and it extends to expunction or ordering expunction of irrelevant remarks made against a person who is neither a party nor a witness to the proceeding from a judgment or order of a subordinate court, although the matter has not been brought before it in regular appeal or revision, and would be exercised, by it in appropriate cases for securing the ends of justice. The Supreme Court, however, cautioned that this being an extraordinary power it will not be pressed in aid except for remedying a flagrant abuse by a subordinate court of its powers such as by passing comment upon a matter not relevant to the controversy before it and which is unwarranted, or is likely to harm or prejudice another. Power under Section 151 of the Civil P. C. is wider than the power conferred on the Court under Section 561-A of the Criminal P. C., and wherever the ends of justice may require, the High Court can, in exercise of its inherent power, pass appropriate orders in the matter and the inherent powers are to be exercised by the Court in very exceptional circumstances for which the Code lays down no procedure (vide: Manohar Lal Chopra v. Raj Bahadur Rao Raju, AIR 1962 SC 527). The learned. Advocate for the petitioners was, therefore, justified in urging that in the first instance the remarks against petitioner No. 1 were uncalled for since In the review application there were not less than half-a-dozen places where the Court has been referred to with great respect and in any case after the permission was granted by this Court to offer an unconditional apology, which was offered by petitioner No. 1 in unconditional terms, nothing survived thereafter which would justify the learned Judge in making the report as he did that the offer of apology was not genuine and, bona fide. The learned Advocate further submitted that so far as petitioner No. 1 was concerned, he was neither a party nor a witness in the action and, therefore, the comments which have been made by the learned Judge, apart from being highly improper, were totally irrelevant for deciding the controversy before him. In any case, he submitted that before making the comments the learned Judge ought to have given an opportunity of hearing to petitioner No. 1. I am of the opinion that the learned Advocate for the petitioners was justified in making the grievancs that the comments were irrelevant for purposes of deciding the controversy, particularly against petitioner No. 1 which could not have been made against him. The remarks against petitioner No. 2 also, who is completely illiterate and does not know how to read or write-, and that he has signed the pleadings, documents etc., by putting his thumb marks, were wholly irrelevant and not justified and their retention on the record will cause serious harm to them while their expunction will not affect the reasons of the order by which the review application was rejected. If the learned Judge was of the opinion that a particular action of a party and/or his advocate (the opening part of the application in the present case) amounted to Contempt of Court, he could have made a reference as provided under Section 15(2) of the Contempt of Courts Act, 1971. In the present report, the learned Judgs has requested this Court, if it so thinks fit, to take proceedings under Section 15(2) of the Contempt of Courts Act, 1971 without making a proper reference which has a recognized connotation in criminal proceedings since the alleged contempt would amount to, if at all, Criminal contempt.

7. The result, therefore, is that this petition is allowed and the remarks made by the learned Assistant Judge, Jamnagar in para 5 of his order of Dec 25, 1981 rejecting the review application No. 6/81 are expunged. There should be no order as to costs.


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