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Judgment
The matter is placed at my instance and not at the instance of any of the parties. I have done so taking what might well be an unusual liberty, in that
I propose today to suo motu review a portion of my own order of 27th January 2017. That order dealt with a Leave Petition under Clause XII of the
Letters Patent. It also dealt with a question of return of the plaint under Order VII rule 10 of the Code of Civil Procedure 1908. I am not today
addressing the issue under Clause XII of the Letters Patent, i.e., whether leave can be obtained ex post facto. The only question that I do wish to
address is whether the High Court on its Original Side can ever direct return of a plaint.
Paragraphs 3 to 9 of that order dealt with this aspect. I took the view that since Order 49 of the Code of Civil Procedure, 1908 (“CPCâ€)
excluded the application of Order VII Rule 10 to Chartered High Courts, therefore, a previous order dated 19th October 2015 returning a plaint was
per incuriam.
I was wrong. It is for this reason that I have listed the matter today. It is sometimes said that a ‘foolish consistency is the hobgoblin of little
minds’. That might be true. But an obstinate adherence to a demonstrably incorrect position in law, even â€" or, worse, especially â€" if that
pronouncement is one’s own, is perhaps infinitely worse, for it would result in the perpetuation of wrong law.
As it happens, there is in fact a provision in the Bombay High Court (Original Side) Rules themselves specifically for return of plaint. This is Rule
283, to be found in Chapter XX entitled “proceedings at the hearings of the Suits and up to and inclusive of decreeâ€. Rule 283 reads thus:
R.283. Return of Plaint.â€" (i) The Court or the Judge in Chambers may at any stage of the suit order the plaint to be returned to the plaintiff to be
presented to the Court in which the suit should have been instituted.
(ii) When an order for return of the plaint is made, the Prothonotary and Senior Master or any officer subordinate to him shall endorse on the plaint (a)
the date of its presentation, (b) the date of the order for its return, (c) the date on which the plaintiff furnishes a copy of the plaint and the date on
which it is certified as a true copy by the office of the Prothonotary and Senior Master, as provided in sub-rule(iii) of this rule, and (d) the date of the
return of the plaint.
(iii) The plaint shall be returned only after the plaintiff has furnished, for the record of the Court, a copy of the plaint and the said copy has been
certified as a true copy by the office of the Prothonotary and Senior Master.â€
As far as I can tell today, Rule 283(i) is not materially different from Order VII Rule 10(1). Sub-rules (ii) and (iii) only provide for a procedure to be
followed once sub-rule (i) is invoked.
When I delivered judgment on 27th January 2017, I did not notice this Rule. I quite overlooked it. This was an error. Therefore, that portion of my
judgment that says that a plaint could never have been returned by this Court on its Original Side, and that a previous order doing so is per incuriam, is
incorrect and not good law. Indeed, my decision is itself per incuriam on this aspect of the matter (return of a plaint), for that very reason.
I have taken the liberty of clarifying this and correcting course in the very matter where I rendered judgment, only so that both orders will be read
together. I believe this is preferable to waiting to make this correction in some other matter. It is perhaps one way of ensuring that the previous order
of 27th January 2017 is not even inadvertently cited as good law on the question of return of a plaint. I am particularly mindful of this because a
portion of my 27th January 2017 judgment dealt with a situation of this kind, where a decision of single Judge was cited before me as good law
although it had been specifically held not to be so by a Division Bench of this Court. I should not, I think, permit anyone to even inadvertently fall prey
to the mischief or mistake that I decried. Last, having realized the error, I believe it is primarily my responsibility to rectify it.
The Suit itself having been withdrawn â€" the result of the order on the Clause XII application, which is untouched â€" this order has no impact on
the respective rights of the parties.