CIVIL APPLICATION NO. 648 OF 2018

27th April 2020

Petitioner Counsel: Mr.Narendra B. Deshmukh
Respondent Counsel: Mr.Bhavin R. Bhatia, Mr.VatsalCharera
Act Name: Code of Civil Procedure, 1908

HeadLine : Civil P. C. (1908), S. 115 – Civil application – Against judgment passed in revision – Applicant failed to establish how civil application is maintainable – Application dismissed.

Section :
Section 115 Code of Civil Procedure, 1908

JUDGEMENT

Introduction:

This case dismays and disturbs any adjudicator. The applicant’s conduct —rather that of her counsel, who happens to be her son, too—sets anybody’s teeth on edge, after hearing the arguments. The applicant seems to have been obsessed with only one intent: to litigate until she gets her argument accepted, meritless it may be. To achieve this, no rule or rhyme should come in her way. Should anyone intervene, be it a judge, the applicant does not hesitate to trample upon decency, decorum, or even reputation. We shall soon see that.

2. In the suit filed by the applicant before the Small Cause Court, the defendants plead that one of the defendants is no more; he died long back in the USA. They produce the proof. The erstwhile GPA Holder of the person died affirms that on oath, too. The trial Court rules on it; unsatisfied, the applicant appeals. The Appellate Bench also concurs with the trial Court. Then, the applicant files a Civil Revision Application, ostensibly, under Section 115 of CPC, makes a hue and cry, claims that the issue is of immense importance, demands that the Hon’ble Chief Justice should refer it to a Division Bench or a Full Bench, calls everybody names, and eventually loses the CRA.

3. After losing the CRA, he files a Civil Application, demands this Court to set aside its earlier order, and also wants a Single Judge to declare a coequal Bench’s decision per incuriam. Pending that, not contented, again she goes back to the Appellate Bench of the Small Cause Court, files a similar appeal or application once again and demands a decision, even after this Court’s affirming the Appellate Bench’s earlier decision on the same issue. She refuses to pay the costs imposed by this Court, threatens the learned presiding judges—all in the name of seeking justice.

4. The tone and the tenor—the incomprehensibility and the cacophony apart—the pleadings running into forty pages demonstrate what pleadings ought not to be.

Backdrop:

5. The applicant has filed RAD Suit No.124 of 2006 before the Small Causes Court, Mumbai, seeking, it seems, a declaration that she is the landlord’s subtenant. In that suit, she arrayed five defendants. The 1st defendant was the original owner of the property. The 2nd defendant is a Society comprising the owners and occupants. The 3rd defendant is said to be a developer and chief promoter of the Society. The 4th defendant is another Society. This Society owns the plot on which the tenements were built. So it is termed the Parent Society. The 5th respondent is the Brihanmumbai Corporation.

6. Though the case has many parallel developments, I do not intend to refer to any of them, I confine to the two disputes before me; the second one depends on the survival of the first one. Primarily, the question before me is whether this Civil Application is maintainable. An answer in the affirmative alone, would want me to analyse the merits of the matter. Therefore, I will narrate the facts only to contextualise the case, but not to discuss the merits— once again.

The Counsel and the Case:

7. Incidentally, the learned counsel for the applicant is none other than her son: Shri Narendra Deshmukh. It was his wont to mention the matter daily. So I took it up for hearing, out of turn. When the arguments began, I repeatedly reminded Shri Deshmukh that he should first convince the Court about the maintainability of CRA. And for that purpose, I wanted him to confine his arguments to that issue. But he went on arguing ‘everything under the sun’, unrestrained. He argued the whole day, almost. That said, to be fair to Shri Deshmukh, I must say though he was insistent, he had never been disrespectful to the Court. Maybe he was consumed by the fact that the matter concerns his own dwelling. Nevertheless, professional as he has been as a practicing lawyer; he ought to have displayed restraint and balance. I got neither from the learned counsel, however.

Facts in Brief:

8. In the suit, the applicant took out the suit summonses to all the defendants, including the 1st defendant. Admittedly, the 1st defendant left India long back and had been living in the USA. When the suit summons was served on the putative Power of Attorney Holder, he filed an affidavit before the trial Court that the 1st defendant died in 2010, in the USA. In this context, the 2nd defendant-Society filed copies of death certificate and other proof to establish that the 1st defendant had, indeed, died. But the applicant disputed this. On this disputation, the trial Court passed an order holding that the 1st defendant had died. In some other context, assailing trial Court’s another order, the applicant filed a Civil Revision Application before the Appellate Bench of the Small Cause Court. In that CRA, the applicant once again tried to serve notice on the now-deceased 1st defendant. When the applicant tried to serve notice on the GOP Holder; he refused to receive it. Instead, he produced, as the applicant puts it, a photocopy of the death certificate. But the applicant would have none of it. She asserted that there should be a proper service on the 1st defendant. Then, the Appellate Bench, as did the trial Court, passed an order that the 1st defendant had died. The order, dated 30th January 2018, reads:
“The applicant has filed present application for service of notice. Heard the learned advocate for the parties. Gone through the bailiff report and documents produced on record. Respondent No.2 has produced certified copy of affidavit filed by Mr. Sevanti B. Shah, certificate of death, affidavit of Manibhai K. Patel. After going through the photocopy of certificate of death and affidavits it appears that respondent No.1 is expired on 28.11.2010 in U.S.A. The bailiff report also speaks about the death of Respondent No.1. There is no reason to disbelieve the bailiff report, copy of death certificate and affidavits. As such notice of the revision application cannot be reissued against him. In respect of respondent no.3 it appears that notice could not be served for want of new address. The applicant has given new address in the application. Therefore, it is necessary to reissue the notice at new address against respondent no.3. Hence, application deserves to be partly allowed. Therefore, following order is passed.
ORDER
1. The application Exhibit-23 is partly allowed.
2. Reissue notice to respondent No.3 at the new address mentioned in the application.
3. Prayer to reissue notice to respondent no.1 is rejected.”

9. Aggrieved, the applicant filed CRA No.149 of 2019. In that CRA, initially, the applicant has filed a reference application No.1 of 2018, supposedly, under Rule 7 of Chapter 1 of the Bombay High Court Appellate Side Rules, 1960 (“the Appellate Rules”). She has contended that the matter must be referred to a Division Bench given its importance. In that context, on 6th June 2018, the learned Single Judge passed an order. It reads:
“Heard Mr. Deshmukh, learned Counsel for the applicant.
2. C.R.A. is directed against the judgment and order dated 30.01.2018 passed by the Appellate Bench of the Small Causes Court at Mumbai (Bandra) below exhibit-23 in Revision Application No.38 of 2017. By that order, the Appellate Court partly allowed the application exhibit- 23 filed by the petitioner herein for service of notice and re-issued notice to the respondent No.3 before the Appellate Court at the new address mentioned in the application. Prayer to reissue notice to the respondent No.1 before the Appellate Court was rejected.
3. Applicant has filed Reference (St.) No.12327 of 2018 inter alia praying for referring the C.R.A. before the Hon'ble the Acting Chief Justice so as to decide and place C.R.A. before the Division Bench or Larger Bench in terms of Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 9160.
4. In view thereof, Registry is directed to place C.R.A. and Reference (St.) No.12327 of 2018 before the Hon'ble the Acting Chief Justice for placing both the matters before one and the same Court. Mr. Deshmukh assures that he will carry out proper pagination to the Reference forthwith.”

10. In that backdrop, the then Hon’ble Acting Chief Justice passed an administrative order for placing Civil Reference (st.) No.12327 of 2018 and Civil Revision Application No.149 of 2018 separately as per the prevailing sitting arrangement: the former before a Division Bench and the latter before a Single Judge.

11. Though the applicant’s counsel sought a certified copy of the administrative order passed by the Hon’ble Acting Chief Justice, the Registry, it seems, refused to entertain that request. On 14th August 2018, it wrote to the applicant’s counsel that the order is administrative but not judicial, so it could not provide the certified copy. At any rate, the reference application was sent to a learned Division Bench and this Civil Revision Application to a Single Judge that has the jurisdiction over the Rent Control Matters. Despite this arrangement by the Hon’ble the Acting Chief Justice, the applicant has relentlessly insisted on a common hearing for both the matters: CRA and the Reference Application before a Division Bench. He contended that the learned Single Judge should not proceed with the CRA.

12. In that context, on 3rd October 2018, the learned Single Judge directed the matter to be listed on 9th October 2018 in the Supplementary Board. The Hon’ble Judge gave liberty to the applicant’s counsel to place a photocopy of the proceedings of CRA before the Division Bench and to request it for clubbing the CRA and the Civil Reference if it was permissible. Then, the order, dated 3rd October 2018, an elaborate one, spelt out the Court’s intention thus:
7. As the Division Bench has kept Civil Reference (St) No.12327/2018 on 8.10.2018, hearing of present CRA is deferred till 9.10.2018. To be listed in the Supplementary Board. The applicant is at liberty to place phto-copy of the proceedings of this CRA before the Division Bench or is at liberty to request the Division Bench for clubbing this CRA along with Civil Reference (St.) No.12327/2018. It is made clear that if no such order is obtained, this Court will proceed regardless of pendency of Civil Reference (St) No.12327/2018 in view of the decision of Apex Court in the case of Ashok Sadaranganiv. Union of India, (2012) 11 SCC 321.”

13. Seen from the record, on 8th October 2018, approached by the applicant, the learned Division Bench observed that “the learned Single Judge would be at liberty to proceed with the hearing of the CRA. The learned counsel for the petitioner to place on record photocopies of the proceedings in the CRA and also satisfy the court about maintainability of the present Civil Reference on the next date.” To my specific query, Shri Deshmukh informs me that the reference application is still pending.

14. As observed by the learned Division Bench in its order dated 8th October 2018, the learned Single Judge took up the CRA on 9th October 2018, the date assigned for the case, and disposed it of; rather dismissed it. After hearing the rival contentions, the learned Single Judge has observed thus:
7. I have considered rival submissions advanced by learned Counsel for the parties. I have also perused the material on record. A perusal of the impugned order shows that the plaintiff had filed application Exhibit 23 for effecting service of notice. The Appellate Court perused the Bailiff Report and documents produced on record. The Appellate Court noted that respondent No.2 has produced certified copy of Affidavit filed by Mr. Sevanti B. Shah, certificate of death, copy of Affidavit filed by Manibhai K. Patel. Mr. Bhatia submitted that respondent No.2 has produced original death certificate of respondent No.1 before the Appellate Court. That apart, the Appellate Court has also considered the Bailiff's report which records death of respondent No.1. After considering this material on record, the Appellate Court observed thatthere is no reason to disbelieve the Bailiff's report, copy of death certificate and affidavits of Sevati B. Shah and Manibhai K. Patel. The Appellate Court, therefore, held that notice of Revision Application cannot be reissued against respondent No.1. As notice on respondent No.3 could not be served for want ofnewaddress, new address given by the plaintiff in the application was noted and the Appellate Court directed to issue notice to respondent No.3 at the new address mentioned in the application.
8. Mr. Deshmukh relied on Sections 78 (4) and (6) as also sections 101, 102, 103, 106, 107, 108 as also sections 56, 57 and 59 of the Act. I failed to appreciate relevancy of these provisions in the context of controversy raised in this C.R.A. As far as the submission based on the decision of Gangadas s/o Moujibhai Patel (supra) is concerned, the said decision has no relevance in so far as deciding validity of the impugned order. In my opinion, the present C.R.A is nothing but abuse of process of Court as also abuse of process of law. Accordingly, C.R.A is dismissed by imposing exemplary costs of Rs. 10,000/ payable by the plaintiff to respondent No.2. Costs shall be paid within 4 weeks from today failing which respondent No.2 is at liberty to take out application under Order XXIX, Rule11 of the C.P.C for dismissal of the proceedings filed by the plaintiff. Order accordingly”

15. As seen from the above extract, the learned Single Judge has concluded that the applicant’s approach is nothing but abuse of process of the Court, as well as of law. Observing thus, his Lordship has dismissed the CRA by imposing exemplary costs of Rs.10,000/- payable by the plaintiff to the second respondent. It has also been held that the applicant should pay costs in four weeks from the date of the order, failing which the second respondent is at liberty to take out an application under Order 29 Rule 11 of CPC for the dismissal of the proceedings filed by the applicant-plaintiff.

16. Aggrieved by the dismissal of CRA, the applicant filed CAC No.648 of 2018. when I wanted to know what the abbreviation CAC stands for, the applicant’s counsel has informed me it stands for “Civil Application in CRA.” In this CAC, which runs into 40 pages, the applicant seeks these reliefs, styled as “Incidental Perforce Prayers”:
A) In considered view of the above, any delay in presentation of the civil application requiring setting aside the invalid dismissal order of the proceedings dated 9/10/2018 posted by the Honourable Justice… C.R. No.9 be condoned graciously in the interest of doingjustice in accordance with valid law and in paved the way for doing justice in accordance with valid laws in force and effects;
B) Te impugned invalid DISMISSAL order of the proceedings DATED 9/10/2018 (ANNEX. “A” herein) passed by the Honourable Justice… be set aside & be declared as invalid unlawful and foreseeable not binding & bad in law & unsustainable & untenable in law null & void non-est nullity in the eyes of law URGENTLY AND THE C.R.A. NO.149 OF 2018 BE RESTORED TO ITS ORIGINAL REGISTRATION NUMBER ETC;
C) The effect operation and percent implementation of the invalid impugned order of proceedings dated 9/10/2018 (the annex. “A” herein) including the invalid & unsustainable and per cent and warrant unjustified unfair and per cent unreasonable etc the payment the cost to the Respondent No.2 (two) imposed at Rs.10,000 on CRA applicant BE STAYED by an order or direction of this Hon’ble Bombay High Court TILL FINAL DETERMINATION & DISPOSAL OF THE PENDING C.R.A. LAWFULLY & URGENTLY in the interest of justice & done away with any grave & serious palpable injustice to the immensely suffered CRA applicant already at the instance is of the honourable Bombay High Court too;
D) AD-INTERIM & INTERIM RELIEF in terms of the PRAYER “C” hereinabove be granted validly urgently in orderto arrest avert & prevent duly the grave & serious palpable unsustainable injustice being caused to the lawful CRA applicant herein even considering an Act of the Court shall prejudice no man or mind or the party to the fire judicial proceedings in the lawful CRA No.149 of 2018;
E) The invalid dismissal order dated 9/10/2018 (annex “A” herein) may be fairly & proper judicially percent appropriately be considered construe & inferred by the by incidentally & properly in a sort in the nature & form as the fire judicial report of the Shri Justice… as per & under the material relevant provisions of the CHAPTER I RULE 7 OF THE BOMBAY HIGH COURT APPELLATE SIDE RULES, 1960 suggesting indicating implying signifying to the Honourable CHIEF JUSTICE & THE ACTING CHIEF JUSTICE that the CRA matter can be more advantages to be heard by a/the division bench of the Bombay High Court & there by warrant the Honourable Chief Justice & the acting Chief Justice make such order as the Chief Justice & the Honourable Chief Justice think fit under a percent as per the relevant provisions of CHAPTER I RULE 7 OF THE BOMBAY HIGH COURT APPELLATE SIDE RULES, 1960&WITH THIS & SUCH & consequently the Reference Applicant is rendered further presently as otiose, redundant or inconsequential or stands satisfied & fulfilled the provisions of CHAPTER I RULE 7 of the Bombay High Court appellate side Rules to be read in the relevant reference manner context of the broad and general policy guiding matter prescribed & laid down in the chapter XVII Rule 18 (i) (ii) of the said Rules 1960 in the further relevant context of the impugned incorrect inconsistent& defective judgement of the Bombay High Court 2003 (1) MHL J203 which is also the subject matter of remission in the CRA;
F) Any other ancillary or incidental order as may be deemed fit & proper by the Hon’ble Bombay high Court may pleased with be granted & be issued in the interest of justice & as may be appropriately desired or warrant or justified & necessitated by the present correct facts & circumstances of the C.R.A. No. 149 of 2018 INCLUDING VALID ASSIGNMENT BE MADE OF THIS PRSENTED CIVIL APPLICATION Dated 27/10/2018 by the Hon’ble chief justice & the Hon’ble Acting Chief Justice validly to the SINGLE JUDGE in respect of the relevant provisions of the HAPTER I RULE 2 I civil (b) (e) of the BOMBAY HIGH COURT APPELLATE SIDE RULES 1960 subject to valid assignment of the C.R.A. to the Division Bench of the Bombay High Court as specified within the PRAYER NO.’’E’’ herin fore mentioned urged & pressd for validly SUBJECT TO VALID DISPOSAL OF THIS PRESENTED CIVIL APPELCIATON DT. 27/10/2018:
G. The heavy & Exemplary costs of this Civil Application be presented & perused diligently costly be considered fair judicially & costs provided for & be granted URGENTLY to the C.R.A. Applicant in doing perfect & substantial & substantive justice in accordance with the provisions of the sections 35,25-A,35-B etc of the Civil procedure Code supplementary & guiding to the Material relevant provisions of the SECTIONS 33, 34,35,37,7,(9)(3)(15) ETC OF THE MAHARASHTRA RENT CONTROL ACT,1999.
H. INCIDENTALLY & PERFORCELY IN CONSIDEREING THE ROZNAMA DATED August to October 2018 of the Hon’ble Bombay City Civil Court at Dindoshi (true copy whereof annexed herewith as the Annex. Exhibit ‘’K’’ herein) fair judicial proceedings being conducted by the Hon’ble Bombay City Civil Court at Dindoshi in the S.C. suit No. 1834 of 2008. Involving the very determination of the very question & issue of determination of death or living of the SHRI BECHARBHAI JIVABHAI PATEL the Respondent No. 1 (one) herein & the Defendant No. 1 (one) therein in the said suit No. 1834 of 2008 be just & conveniently STAYED in considered view of the supplementary provisions of the section 94(e) of the supplementary C.P.C. by the order OR DIRECTION of the Hon’ble Bombay High Court till the valid disposal of the C.R.A. No. 149 of 2018 in order to be averted ends of justice getting defeated in the law suit matters & Be duly avoid duplication of the proceedings, costs, expenses, hardship, Inconveniences, to all concerned & prevent two conflicting judgments in the two different court proceedings determining the very one & the same ISSUE pending before the both the Courts i.e. the Hon’ble High Court & the Hon’ble City Civil Court at Dindoshi. (only the underling and boldface are removed)

17. Seen from above, if the prayers are so twisting and tortuous, it is left to anybody’s imagination how the40-page pleadings read: verbose, wandering, incoherent, rambling and repetitive, to say the least. Yet it is the lot of the judge to wade through the quagmire of this legal jargon to ferret out the facts if ever they are present. From what I have understood, I reckon that the applicant wants this Court:
(A) to set aside the order, dated 9/10/2018, CRA No.149 of 2018;
(B) to restore CRA No.149 of 2018 to the file;
(C) to stay “the operation and implementation” of the order, dt.9/10/2018, imposing the costs of Rs.10,000/- on the applicant the “final determination and disposal of the pending CRA”;
(D) to grant an ad interim relief in terms of prayer “C”;
(E) to let a Division Bench, in terms of Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules, 1960, hear the CRA, Reference Application, and the correctness of the judgment in Gangdas v. Harshvardhan, 2003 (1) Mh. LJ 203, “which is also the subject matter of remission in the CRA”;
(F) to pass any other order ancillary or incidental to the issue on hand, including a valid assignment of the Civil Application, dt.27.10.2018, by the Hon’ble Chief Justice “validly to the Single Judge” and “valid assignment of the C.R.A. to the Division Bench”;
(G) to award costs to the applicant;
(H) to direct the City Civil Court at Dindoshi to conduct the judicial proceedings fairly in S.C. Suit No. 1834 of 2008 and (perhaps) to redetermine the issue of the first defendant’s death. Summary of the Applicant’s Submissions:

18. To begin with, I wondered aloud as to how I can legally set aside the order or judgment of a coequal Bench on the merits. In answer, Shri Deshmukh, the learned counsel for the applicant, has submitted that the order is ex parte and it is dismissed for default. Then, he has submitted that at any rate this Court under Section 34(4) of the Maharashtra Rent Control Act (“MRC Act”) has the powers to set aside the order, dated 9th October 2018, rendered by a co-equal Bench. Then, he has advanced his further submissions.

19. As I have already noted, I repeatedly requested Shri Deshmukh to confine his submissions to whether this CAC is maintainable; in other words, whether I can set aside the order, dated 9th October 2018. Notwithstanding, that, in his eagerness, Shri Deshmukh has advanced arguments covering the merits and beyond. He took about three hours to conclude his arguments, if we do not reckon his intermittent submissions earlier.

20. Shri Deshmukh has submitted that the order is grossly illegal and cannot be sustained. According to him, the trial Court, the Appellate Bench, and this Court have repeatedly violated the statutory mandate and not adhered to the procedural propriety. Though the issue the applicant raised has farreaching consequences, the Courts have not paid attention. Actually, the phraseology is, to a large extent, indecorous. I have modulated the submissions to lend them an air of civility, however.

21. As to the maintainability of CAC No.648 of 2018, Shri Deshmukh has submitted that the applicant has invoked Rule 7 of Chapter I of the Appellate Side Rules. Under that Rule, she wanted the learned Single Judge to place the matter before the Hon’ble the Chief Justice. According to Shri Deshmukh, when the matter was placed before the Hon’ble Chief Justice, he ought to have constituted either a Division Bench or a Larger Bench to decide the issue. But the Hon’ble Chief Justice “has erroneously skipped the matter” and placed only the reference application before the Division Bench. The CRA, however, was relegated to the jurisdictional Single Judge. This, according to him, violates the statutory mandate of Rule 7 of Chapter I of the Appellate Side Rules.

22. Shri Deshmukh has persistently contended that Section 34(4) of the MRC Act requires the learned Single Judge to call for the record and decide the matter. But the learned Single Judge has not called for any record; instead, he has decided the matter hastily. Then, Shri Deshmukh stresses that despite his filing “extremely urgent” praecipes on numerous occasions, neither the Division Bench nor the Single Judge has appreciated the urgency.

23. The judgment rendered by the Nagpur Bench of this Court in Gangdas v. Harshvardhan, according to Shri Deshmukh, is “confusing, misleading & misrepresenting the subordinate courts”. It is “defective, incorrect, and incomplete.” As it sets a wrong precedent, it must be set aside— in this Civil Application. When I have pointed out that this Court has already observed that the applicant has abused the process of the Court, Shri Deshmukh has submitted that, on the contrary, it is “the Hon’ble Chief Justice, the Registry, and the Courts below” that abused the process.

24. In the end, Shri Deshmukh has contended that unless this Court sets aside the order, dated 9th October 2018, it amounts to the Court’s accepting the wrong findings of the trial Court and the Appellate Bench of the Small Cause Court on the issue of the first defendant’s death. “By refusing to entertain the CRA, this Court has collaterally decided that issue and confirmed that the 1st defendant has died.”

25. Shri Deshmukh has also submitted that in the CAC, he himself has filed the Advocate note, dated 23rd June 2019, “raising the objection on affidavit” in terms of Chapter II Rules 2 and 3 (ii) of the Appellate Side Rules, read with Articles 315 and 375 of the Constitution of India. According to Shri Deshmukh, this objection concerned the hearing of both the Civil Reference application and Civil Revision Application together. According to him, even now this Court has not adhered to that requirement despite the counsel’s objection.

26. To support his contention, Shri Deshmukh has relied on National Insurance Co. Ltd. v. Jugal Kishore, (1988) 1 SCC 626, Gopal KrishnajiKetkar v. Mohamed Haji Latif, AIR 1968 SC1413, besides Ashok Sadarangani v. Union of India, (2012) 11 SCC 321.

27. Thus, Shri Deshmukh has urged this Court to set aside the order, dated 9th October 2018, and restore the CRA, besides granting other reliefs. Respondent No.2:

28. Shri Bhaven Bhatia, the learned counsel for the second respondent, has submitted that, as this Court has observed in the order, dated 9th October 2018, the applicant has abused the process of Court. He has pointed out that besides filing a suit before the Small Causes Court, the applicant has also filed another Suit in the Civil Court. Shri Bhaven Bhatia stresses that the applicant has been dragging the proceedings before both the fora without any justification. He has further submitted that when the Appellate Bench wanted to go ahead with the matter, Shri Deshmukh has threatened the presiding Judges. Shri Bhaven Bhatia has drawn my attention to the order, 10th December 2018, passed by the Appellate Bench; he has handed over a copy to me. He wants this Court to dismiss this Civil Application with exemplary costs, as it did earlier.

Reply:

29. In response, Shri Deshmukh has submitted that he did threaten but he “threatened only within the legal limits” of pointing out lapses committed by the Courts below.

Discussion:
1. Has this Court got the power, as the applicant would contend, to have a revision over a revision—to further revise an order in revision? 30. The applicant asserts this Court does have that power. According to her, it is under Section 34(4) of the MRC Act. Indeed, Section 34 of the MRC Act deals with “Appeal.” It mandates, if no appeal lies under this section from a decree or order in any suit or proceeding in Brihan Mumbai, the bench of two Judges specified in clause (a) of subsection (1) and elsewhere, the District Court “may, to satisfy itself that the decree or order made was according to law, call for the case in which such decree or order was made and pass such order as it thinks fit. Plainly put, Section 34 (4) of the MRC Act deals with the revisional powers of the Appellate Bench of the Small Cause Court or the District Court. It does not, I am afraid, concern the High Court.
2. What is the scope of Rule 7 of Chapter I of the Bombay High Court Appellate Side Rules?
31. Of the Appellate Side Rules, 1960, Chapter I deals with jurisdiction of Single Judges and other Benches of the High Court. The appellate powers of both Civil and Criminal jurisdictions must lie with ‘the Division Court’ consisting of two or more judges. But the Appellate Side Rules may provide for an exception and specify that any particular jurisdiction be exercised by a Single Judge, it must be so. That said, paragraph (ii) of Rule 1 confers wide discretion on the Hon’ble Chief Justice. He may “assign any matter or categories of matters which can be disposed of by a Single Judge to a Division Bench.”

32. Rule 2 enumerates what matters may be disposed of by a Single Judge. Among them are the Civil Revisional Applications. On the other hand, Rule 7 speaks of the decisional dilemmas and precedential tangles. It provides for resolving judicial cleavage among co-equal benches. If there is a difference of opinion between Judges of a Division Bench, it shall be decided in the manner provided for in section 98 of the Code of Civil Procedure or section 392 of the Code of Criminal Procedure, as the case may be.

33. I fail to see how Rule 7 of Chapter I of the Appellate Side Rules rescues the applicant. True, the Hon’ble Chief Justice can assign to a Division Bench a matter otherwise amenable to a Single Judge’s jurisdiction. But it is entirely discretionary. A party may, no doubt, may apply for it, but he can never insist that the Hon’ble Chief Justice should exercise his discretion as the party desires and assign the matter to a Bench of a specific strength. If that be so, it is no discretion at all.

34. Here, the record amply demonstrates that the Registry, at the Single Judge’s direction, placed the matter before the Hon’ble the Chief Justice. And the Chief Justice has decided to place the reference matter before a Division Bench and the Civil Revision Application before a Single Judge. That discretion is unassailable, nor is it justiciable.
3. Can a Single Judge declare a co-equal Bench’s decision as per incuriam?

35. The answer a plain no. The applicant wants me to declare that the decision of this Court’s Nagpur Bench in Gangdasis per incuriam. In fact, the applicant uses colourful epithets for this. I am afraid I have no such power. And if I ever exercise such power as the applicant wants me to, it amounts to judicial misadventure.
4. Do the decisions the applicants relied on pertain to the issue on hand?

36. According to the Supreme Court, in National Insurance Co. Ltd., “it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof.” It is, in fact, the reformulation and reiteration of its earlier proposition in Gopal Krishnaji Ketkar.

37. The judgment of a tribunal in civil proceedings, more particularly rendered on the basis of a settlement or compromise, according to the Supreme Court in Ashok Sadarangani, would not be of much relevance in a criminal proceeding in view of the provisions of Section 43 of the Evidence Act, 1872, which provides that judgments in civil proceedings will be admissible in evidence only for limited purposes.

38. I must say the above decisions the applicant has relied on do not deal with the maintainability of the CRA; instead, they deal with the burden of proof. They do not, regrettably, help the applicant’s cause.
5. Can a High Court indulge in round-robin revisions or repeated adjudications, one co-equal Bench upsetting the adjudication by another coequal Bench, under whatever guise?

39. In a mortgage suit, after securing a decree, the plaintiff brought several items of the hypotheca to sale, in an EP. The defendant filed an EA for having the sale set aside. Later, that application was dismissed. The defendant preferred an appeal under Order 43, Rule 1(j). The Appellate Court dismissed the appeal; the reasons are not germane for us. Then, the defendant filed a Civil Revision before the High Court of Andhra Pradesh, which allowed it.

40. In the above factual backdrop, the High Court of AP in Hindustan Steel Works Construction Ltd. v. Tarapore and Co., AIR 1990 AP 82, has held that the High Court is one Court. “It is misconceived to think that it is composed of as many courts as there are number of Judges.” Art. 214 of the Constitution of India, which says that there shall be a High Court for each State, dispels any such doubts. “Merely because against the judgment of a single Judge an appeal is provided to a Bench of two Judges in certain situations, a Judge of a High Court sitting single would not become Subordinate to the Division Bench and the order passed by a single Judge cannot be said to be an order passed by a Court subordinate to the High Court.”

41. For this proposition, the High Court of AP has relied on a Division Bench judgment of the Calcutta High Court in Devendranath Das v. Bibudhendra Mansingh, AIR 1916 Cal 973. There, Jenkins, C.J. has observed thus: "And here I may point out that a Judge sitting alone is not a Court subordinate to High Court, but performs a function directed to be performed by the High Court (Cl. 36 Letters Patent) And thus no decision of a single Judge can be revised under S. 115 of the Code."

42. If we notice further, after collating relevant case law on the topic, C. K. Thakker’s Code of Civil Procedure, EBC., Vol.2, p.1077 accepts that the Supreme Court will not normally interfere under Article 136 of the Constitution with the orders passed by a High Court in exercise of its revisional jurisdiction. But where the High Court acts illegally or with material irregularity or where it fails in its duty, according to the learned author, the Supreme Court may interfere with such orders. One of the decisions relied for this proposition is Terene Traders v. Rameshchandra Jamnadas& Co., AIR 1987 SC 1492

43. So, I must conclude that none of the decisions the applicant has relied on has the proposition that there lies a Civil Revision before a Single Judge against another Single Judge’s order in another Civil Revision. Nor is there any proposition that such a course is available to a Division Bench, either.
6. Is this Court’s impugned Judgment, dt.9th October2018, an ex parte one? 44. Shri Deshmukh maintains it is. But the judgment reveals it is not. In fact, it is on contest and on merits.
7. Has the applicant’s counsel threatened the learned Judges of the Small Cause Court’s Appellate Bench “only within the legal limits,” as he puts it?

45. I must say “threatening” whomever and “threatening only within the legal limits” are paradoxical and oxymoronic. There can be no threat within legal limits. A threat is a communicated intent, according to Black’s Law Dictionary, to inflict harm or loss on another or on another’s property, especially one that might diminish a person’s freedom to act voluntarily or with lawful consent. Here, a threat to a judge aims at affecting his adjudicatory ability and freedom. In that sense, nothing of it can be legal.

46. As we have already discussed, the applicant contested before the trial Court the first defendant’s death. The Court returned a finding that he was dead. Aggrieved, the applicant approached the Appellate Bench of the Small Cause Court. Besides, she raised the same plea about the 1st defendant’s death in some other proceedings pending before the Appellate Bench.

47. In the Revision Application No. 38 of 2017, through order below Exhibit-23, the Appellate Bench concurred with the trial Court. Then, the applicant filed Civil Revision Application No. 149 of 2018 before this Court. Through its judgement, dated 9th October 2018, this Court dismissed the CRA, by imposing exemplary costs of ₹10,000. Of course, now we have this Civil Application against that order of dismissal, with its maintainability as the core issue.

48. Undeterred, pending the Civil Application before this Court, the applicant filed another application before the Appellate Bench of the Small Cause Court, again, contending that the 1st defendant is alive, and he should be put on notice. In that context, the Appellate Bench expressed its inability to take a different stand on the same issue, which stood concluded not only by itself but also by this Court. It has also noted that to proceed further with the case pending before the Appellate Bench involving other issues, the applicant has not even complied with the High Court’s directive: the payment of cost.

49. Under these circumstances, on 10 December 2018 the Appellate Bench passed Order below Exhibit-1 in M. Appeal No. 81 of 2017, in “The Urgent Lawful Transfer Application, the Exhibits Nos.55 of 2013.” The Order reads:
“3. Advocate Shri Deshmukh was asked not to raise voice. He said, “I will raise the voice, if order is passed against me.” He also threatened this Bench saying that he will take personal action against the judges of this Bench, if any such order is passed against him and thereby gave threats to the Judges of this Bench.
4. At the same time he has made certain wrong observations regarding the authority of the Hon’ble High Court also and has made irrelevant statements against the Hon’ble judges of the Hon’ble High Court. He further says that a legal order has been passed and it is challenged by him in the Hon’ble High Court itself and if he raises his voice then, he will be sent to the Hon’ble jail by the Hon’ble judges. The statement of advocate Shri Deshmukh is contemptuous statement and so, it is necessary to be taken on record before passing any order in this appeal. So, this conduct of advocate Shri Deshmukh is recorded in open court.”

50. Unfortunate as it is, the threats, the insinuations, the innuendos are by no means rare. Public cause and the interest of justice, nebulous and amorphous as they remain, are the ploys to throw daggers of defamation at any judge. For some stakeholder in the system, “the Court must function and decide either my way or no way. An order in my favour is for the public good, for lok kalyan. An order passed against me, the whole world must irrevocably presume that the judge is corrupt, incompetent, and everything conceivably evil.” No judge relishes to be a litigator or a defender of his interest even in the name of contempt. True, the concept of contempt concerns the majesty of law, and the judge is not an adversary in that. An ideal notion but idle in application, too. In practice, it is traumatic and unedifying, though.

51. A judge, any judge, builds his reputation brick by brick—it is a lifetime toil. But a disgruntled client or counsel can—and many a time does— demolish it in a trice. With the social media, unaccountable and invasive as it is, in tow, an unscrupulous litigant is a misdirected missile, razing reputations to the ground. “It takes many good deeds to build a good reputation, and only one bad one to lose it”, says Benjamin Franklin. But whose bad deed is it anyway? Even if the bad deed is the client’s or the counsel’s or the judge’s, the lost reputation is the judge’s.

52. Granted, an essential condition for realizing the judicial role is public confidence in the judge. But what is public confidence? According to Aharon Barak, popularity is no measure of public confidence, nor is it pleasing the public. It is, on the contrary, “[R]uling according to the law and according to the judge’s conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the judge is doing justice within the framework of the law. . . . [Judging] is not fiat but reason; not mastery but modesty; not strength but compassion; not riches but reputation; not an attempt to please everyone but a firm insistence on values and principles; not surrender to or compromise with interest groups but an insistence on upholding the law; not making decisions according to temporary whims but progressing consistently on the basis of deeply held beliefs and fundamental values.” Aharon Barak, The Judge in a Democracy, Princeton University Press, Ed.2006, P.110.

53. Is ‘freedom of expression’ the universal undertaker to bury all rights to reputation, to mortify all privileges of privacy, and to inter all instances of integrity? To answer this, Aharon Barak, the justice turned professor of Israel, quotes from his own judgment in Re’em Eng’g Contractors Ltd. v. Municipality of Upper Nazareth, 47(5) P.D. 189, 211, as quoted Id.169. He talks about the competing interests and conflicting claims and relativity of those claims and conflicts: A social principle (such as freedom of expression) does not have “absolute” weight. The weight of a social principle is always relative. The status of a fundamental principle is always determined relative to other principles, with which it may conflict. The weight of the freedom of speech relative to the freedom of movement is different from its weight relative to judicial integrity, both of these are different from the weight of the freedom of speech relative to reputation or privacy, and all of these are different from the weight of the freedom of speech relative to the public interest in security and safety.15

54. Putting the above observation in context, Aharon Barak has declared that the “balancing formula” reflects the relative value. The number of balancing formulas will always exceed the number of conflicting values, since within the limits of a given value (such as freedom of expression) there may be different levels of weight (political expression, commercial expression, and so on). We should not search for only one balancing formula to balance all the conflicting principles, Id., p.170.

55. The recently departed eminent jurist and Senior Law Lord Tom Bingham, in his The Business of Judging, Oxford University Press, Ed.2011, p.61, has said the right of the press to comment on matters of public interest, in any event, is all but sacrosanct. “I am not for my part sure that media attacks on the judges have much to do with judicial independence; but one could wish that those who set out to destroy judicial reputations, with the harassment that almost always accompanies such attacks, gave more thought than is evident to the public interest which they are likely to injure.”(is this para relevant to case)

56. Lord Bingham has further warned that there is an area in which great caution is needed. The reputation which judges generally enjoy for impartiality and skill in arriving at the truth is a priceless asset, not to be lightly squandered. For this, he quotes Lord Devlin: “In our own country the reputation of the judiciary for independence and impartiality is a national asset of such richness that one government after another tries to plunder it.”, Id., p.64(is this para needed)

57. This is neither a diatribe nor an exegesis on the judges’ right to reputation, if there is one. Judges never claim infallibility. Their existential angst to decide correctly is the invisible albatross around their necks. Erring if ever, the judges look to a course correction. For that they are never averse to having their judgments subjected to critical analysis, besides the hierarchical adjudicatory safeguards. It is the critical analysis of the judicial reasoning that lets the cause of justice thrive, not the character assassination, though. Conclusion:

58. Let us bear in mind that right to primary access to judicial remedies is an inalienable right subject to statutory parameters such as limitation, lex loci, lexfori, and so on. But remedies, say, of appeal, revision, review are entirely statute conferred; they inhere in no suitor. Here, the applicant has exhausted every remedy and wants to repeat the same exercise all over again. It is impermissible. The applicant has failed to establish how the Civil Application is maintainable over the judgment this Court passed in a Civil Revision.

Result:

59. The Civil Application No.648 of 2018 is summarily dismissed. Given the tactics the applicant adopted earlier, the Registry will entertain no more applications from the applicant in relation to the issue decided in CRA No.149 of 2018 and CA No.648 of 2018. If the applicant is aggrieved, she may exhaust appropriate legal remedies available to her—but not another application before a Single Judge as has been done in the name of a Civil Application.

60. The trial Court and the Appellate Bench of the Small Cause Court may proceed with the matters pending before them as expeditiously as their daily docket permits. If the applicant tries to delay or dilate the proceedings, the Courts may take all appropriate measures to prevent the abuse of process.

61. This Court’s judgment, dated 9th October 2018, stands undisturbed. If the applicant still fails to pay the costs as this Court has ordered in that judgment, the consequences will follow.

62. If the trial Court or the Appellate Bench of the Small Cause Court records one more instance of intemperate or contemptuous behaviour by the applicant or her counsel, this Court will be constrained to deal with the issue sternly.

63. All is said and done, this Court has already imposed costs on the applicant. I do not intend to increase that burden with additional costs, though the case deserves them. This restraint is with the hope that the applicant will see reason and conduct her case with the decorum the judicial proceedings deserve. And it is hoped that the counsel for the applicant will advise his client, not just as her counsel and son, but also as a responsible officer of the court. No order on costs.

DAMA SESHADRI NAIDU, J.

Tail Piece:
Because of the lockdown, the Court has not been in session; besides, I am presently stationed at Goa Bench. So the Registry contacted all the counsel, including Shri Deshpande, to notify them about the Court’s pronouncing the judgments through video from Goa. Then, Shri Deshpande, as I am told, sent a a petition (email) to the Registrar, Judicial. Now, just before the pronouncement, I had that forwarded to me.
I gather from the petition, if we could term it so, that Shri Deshpande, as a counsel for the applicant, has objections about the pronouncement. But the Court rejects the objection and pronounces the judgment. At any rate, for the sake of record, I set out the objection in full, without any comment, though: Date: Sun, 26 Apr 2020 19:09:56 +0530 Subject: IntheHighCourt of judicature at greater Mumbai The Advocate for the C.A.C.No.648/2018 &C.R.A.No.149/2018 Applicants raising merited objections to the pronouncement of order by the Hon'ble justice Shri Naidu through video conference slated on 27/4/2020 at 11.30a.m. & so. in C.A.C.No.648/2020.

The objection on merits are as follows.
1). Unless & until the Reference Application No 1/2018 made in the C.R.A matters is disposed of by the Hon'ble Division Bench of the H C. No valid order can be passed by the Single Judge in the C.R.A. matters on merits. Although the Reference Application No 1/2018 is dismissed for non appearance by the order of the Division Bench dated 15/1/2019 the said dismissal is under challenged in INTERIM APPLICATION NO.1/2019.TheSame is still pending.
2). The Reference Application No.1/2018 involve important question of law as to Jurisdiction of the single judge or the D.B.to entertain hear &disposed of the pending C.R.A.&C.A.C.matters &the same is still under the exclusive jurisdiction of the hon'ble Chief justice under the provisions of the CHAPTER 1Rule7 of The Bombay High Court Appellate Side Rules 1960.Unless & until the Four(4) preliminary important question of law raised in the INTERIM APPLICATION NO.1/2019are determined by the valid &lawful disposal of the ReferenceApplicationNo.1/2018 No valid order can be passed by the Hon'ble Single justice Shri Naidu. Any order passed till disposal of the int.Application no.1/2019 & the Reference Application Shall render such order as null &void bad in law & unsustainable in law & shall get hit by the Art.14 of the Constitution as shall amount to denial of equality before law & denial of equal protection of law.
3) The CRA matters pertaining to the Division Bench can not be dealt with &disposed of by single judge. Any order passed by the wrong forum even though right on merits shall be nullity in eyes of law is well settled. The same shall complicate the CRA matters rather than resolving the controversies on merits &add to grave &serious injustices already suffering since 2006 i.e about 15 years.
4). An act of the Court by the Hon'ble High Court acting through single judge is prejudicing the CRA Applicants Consciously contrary to the well settled principle that an act of court shall prejudice no man or mind be fair judicially noticed herein.
5). The C R A Applicants reiterate herein that what can not be done directly can not be done indirectly. & Therefore the justice jurisprudence &processual fairness demands required &claimed herein that let the Hon'ble Division Bench of the H.C. takes its own course & do avoid any unlawful interference by the Hon'ble Single judge in the interest of justice till the Lawful Reference Application No.1/2018 & it's INTERIM APPLICATION NO.1/2019 are disposed of by the Hon'ble D.B. of the H.C.in due Course urgently.
6). Justice in accordance with law i. e. The Chapter l Rule 7 r/w harmoniously the chapter l Rule 2(b)(e), Chapter XXXI Rule 1 of the high court appellate side Rules 1960can not be flayed &neglected altogether thereby rendering the order being passed being called as nullity &void.
6). Non passing the order in the CAC is the need of an hour & matter of time only Therefore do exercise the restraint till the due orders are being passed by the Hon'ble Chief justice &the hon'ble D.B.in doing justice in accordance with law by the Hon'ble High Court.
7). In considered view of the above all please be kept in abeyance the passing of any order in the CA C in the C RA matters till further orders of the D.B.& the Hon'ble Chief justice are in the process of being passed already &obliged. The stated herein within are true to my best knowledge &I do believe the same to be true.

Solemnly affirmed at Place Greater Mumbai on Date 26/4/2020 SD/

The Advocate for the CAC and CRA Applicants Shri Narendra B.Deshmukh, Advocate,

Reg.No.MAH/1762/1989
Moblie No.8356064913

Appended herewith the Advocate I/card & The solemn affirmation, dated 26/4/2020.

Copy to the respondents by email address available.

Decision : Order accordingly.