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Judgment
Srinivasan, J.—The respondent herein was a Deputy Registrar in the Court of Small Causes, Madras. He was transferred and posted as
Head Clerk, Court of the Chief Judicial Magistrate, Tiruchirapalli by an order of this Court dated 17.1.1994. The respondent filed a writ petition,
W.P. No. 1233 of 1994, on 21.1.1994. It was admitted by a learned single Judge of this Court on 25.1.1994. In the petition for stay, notice was
ordered and it was directed to be posted on 31.1.1994. The matter was actually posted on 3.2.1994, but did not reach on that date. It was heard
on 4.2.1994 and interim stay was granted by the learned single Judge. The Government Pleader who represented the appellants herein prayed for
time to file counter and the matter was adjourned to 14.2.1994. But even before that the appellants filed a petition to vacate the interim stay and
got in listed on 11.2.1994. On that date, the learned single Judge after hearing the parties, passed an order that the first appellant herein was trying
to overreach this Court and its powers under Article 226 of the Constitution and, therefore, he was not inclined to hear the petitions for stay to
vacate the stay and directed the first appellant to put back the writ petitioner (respondent herein) to his original place in pursuance of the earlier
order of interim stay dated 4.2.1994. Aggrieved by the said order, the appellants filed writ appeal W.A. No. 290 of 1994, on 16.2.1994. After
notice, the appeal was heard by a Division Bench of this Court on 2.3.1994.
The respondent herein filed a memo before the Bench to the effect that he would join duty at Trichy within one week therefrom as per the order
of transfer and also send a representation to this Court regarding his grievances against the said order which may be sympathetically considered
and ordered within a time limit as may be stipulated by this Court. On the basis of the memo, the Division Bench took the view that nothing
survived for further hearing in the matter. Though the writ petition was also posted with the writ appeal, the Division Bench disposed of only the
writ appeal and directed the writ petition to be posted before the learned single Judge for final disposal. The Division Bench expressed its opinion
that in view of the memo filed by the respondent herein, there was nothing to be considered by the court on the merits of the contentions as to the
validity of the transfer order.
When the writ petition was heard by the learned single Judge, he passed an order on 17.3.1994. After observing that nothing survived in the
writ petition, which was directed against the order of transfer, the learned single Judge proceeded to consider certain submissions made by learned
Counsel for the respondent herein and said as follows:
However, Mr. Sivasubramanian, while making a submission that nothing survives in the order of transfer mentioned that while the order passed in
the Administrative Side, has been stayed by a single Judge of this Court on the Judicial Side, the Administrative side especially the head of the
Administrative side, the Registrar should not have taken the matter on appeal against an interlocutory order. Learned Counsel pointed out that if
the order passed by a learned single Judge of this Court, sitting on Judicial Side, is not obeyed by the Administrative Head of the High Court itself,
how this Court can expect orders of this Court to be obeyed by the Administrative authorities and the Executive. Learned Counsel rightly pointed
out that the Administrative Head of the High Court should set an example by obeying and implementing the orders of this Court, but, instead, he
thought it fit to take it in appeal thinking it as a prestigious issue. Looking at the admissions made by Mr. Sivasubramanian, learned Counsel for the
petitioner it looks very unfortunate that such an episode has happened within the precincts of this Court. When a judicial order is issued by this
Court it has to be obeyed first. That has not been done. Unfortunately the action of the Administrative Head of this Court has been affixed with the
seal of approval by a Division Bench of this Court. As I believe in keeping up proprieties and conventions of this Court, I desist from saying any
further. The writ petition shall stand dismissed.
The first appellant is aggrieved by the said order inasmuch as it will prevent him in future from filing any appeal or challenge in an appropriate
forum any judicial order passed by the court. In this appeal notice was ordered to the respondent and he is represented by a counsel before us.
An affidavit has been filed to-day by the respondent. The affidavit was sworn to on 3.8.1994. Paragraphs 2 and 3 of the affidavit read as
follows:
I submit that the above writ Appeal arises out of W.P. No. 1233 of 1994 in which I had sought to quash the order transferring me from the post of
Deputy Registrar, Court of Small Causes, Madras as the Head Clerk, Chief Judicial Magistrate''s Court, Trichy. The said writ petition has
ultimately been dismissed inasmuch as I had joined at the transferred place. The above writ appeal has been filed for expunging certain
observations of His Lordship Mr. Justice K.S. Bakthavatsalam which were made while the writ petition was disposed.
I submit that since the writ petition had been dismissed and I am awaiting orders to be passed on my representation made to this Hon''ble Court
in respect of my transfer, there is no issue over which I could make any submission in the above writ appeal. No affidavit has also been filed in the
above writ appeal dealing with any specific issues.
5-A. In spite of the fact that the respondent has stated on oath in the affidavit that there is no issue over which he could make any submission in the
writ appeal, learned Counsel for the respondent argued for more than an hour as to the sustainability of the appeal on merits. We were not aware
of the filing of the affidavit and the statements contained therein when the matter was argued by learned Counsel for the respondent. We came to
know of it only at the end of the argument. Had we known it earlier. We would not have permitted learned Counsel to argue the matter at such
length. Learned Counsel, however, attempted to justify his lengthy argument by saying that he did so as an officer of the court with a view to help
the Court in deciding the issues that arise in the appeal. In our view, he ought to have obtained leave of the court for doing so when his client has
filed an affidavit stating that he has nothing to say on the issues which arise in the appeal.
Learned Counsel for the respondent stated the facts of the case chronologically and also dwelt on the merits of the writ petition and submitted
that if the judgment of the learned single Judge, which is under appeal, is viewed in the background of the facts of the case and the submissions
made by him, no exception can be taken to the judgment. In other words, he argued that the learned Judge was driven to make such observations
as found in the judgment. We are unable to accept this contention. Whatever may be the provocation, the learned single Judge ought not to have
given a ruling on an issue which did not arise before him. After expressly stating that nothing survives in the writ petition the only course available to
the learned single Judge was to dismiss the writ petition on that footing. But he proceeded to hear submissions made by learned Counsel for the
writ petitioner and give a ruling that when a judicial order is issued by this Court, it should be obeyed by the administrative head of the High Court.
In his opinion, the Registrar of the High Court is the administrative head and he should have obeyed the Judicial Order. The proposition laid down
by the learned single Judge is not in accordance with law.
Once a person is made a party to a judicial proceeding, whether he is administrative head of a court or not, he is entitled to challenge the
correctness of the judicial order made in that proceeding before an appropriate forum. That is what has been done in this case by the Registrar,
High Court, Madras before a Division Bench of this Court in W.A. No. 290 of 1994. The Registrar cannot be blamed for filing a writ appeal
against the judicial order on the ground that he should have implicitly obeyed the order of the learned single Judge. If that principle is accepted then
there can be no question of anybody filing an appeal against any order of a learned single Judge of this Court as every party to a proceeding is
bound to obey a judicial order passed in that proceeding, whether he is Registrar of this Court or not. That will deprive the party''s right to file
appeals against the judicial orders.
In this case, in particular, the appeal filed by the respondent was entertained by the Division Bench and it has passed an order on the appeal.
The learned single Judge was quite conscious of it and inspite of that, the learned single Judge proceeded to lay down a ruling that a judicial order
cannot be challenged by the administrative head of the High Court and it has to be obeyed. Inasmuch as the ruling of the learned single Judge will
affect any administrative officer of this Court in future whenever a judicial order is passed in a proceeding, to which he is a party, it is necessary for
this Division Bench to correct the proposition laid down by the learned single Judge. It has to be held that the ruling of the learned single Judge is
not good law.
Learned Counsel for the respondent was under a misapprehension that the appeal is filed only for the purpose of expunging a remark made by
the learned single Judge in his judgment in the writ petition and cited authorities in support of his contention that this Bench has no power to
expunge the remarks made by the learned single Judge in his judgment in the writ petition. According to him, that power is available only to the
Supreme Court of India and not to any High Court. He places reliance on the judgment of the Division Bench of this Court in the case of In Re: G.
Vasantha Pai, . In that case, certain remarks were made by the learned single Judge on the conduct of the defendant''s counsel. The Bench found
that they were wholly unwarranted and the counsel was only doing his duty to his client and under the circumstances it was necessary to clear the
reputation of the counsel. At the same time, the Division Bench pointed out that the High Court will not invoke its inherent power to expunge from
the judgment of a Judge of the High Court any remarks or observations and that a judgment of a single Judge of the High Court, whether it be on
the original side, or on the appellate side, in civil or criminal proceedings, is a judgment of the High Court and a Division Bench or a fuller Bench of
the High Court has no power to delete passages from the judgment of the High Court delivered by a single Judge. As the High Court is a Court of
Record, a Division Bench or a fuller Bench has no power to direct expunging of any remarks or observations contained in the judgment of the
single Judge.
The ruling in the decision cited supra, has no application to the present case. In this case, as pointed out, it is the ruling given by the learned
single Judge while dismissing the writ petition that an administrative head of this Court shall obey the judicial order and he has no right to challenge
the correctness of the same, which is challenged in this appeal, and this appeal is not for expunging any remark made by the learned single Judge as
such. Learned Counsel for the respondent invites our attention to the memorandum of grounds of appeal in this appeal and submits that the
appellants want only expunging of the remarks. The language used in the grounds of appeal does not conclude the issue which arises in this case.
As we find that the judgment lays down a rule, which is not in accordance with law, we have to set aside that part of the judgment itself.
Learned Counsel for the respondent contended that the judgment of the learned single Judge is not a judgment within the meaning of Clause 15
of the Letters Patent. He referred to the decision in Asrumati Debi Vs. Kumar Rupendra Deb Raikot and Others, . The order which was
challenged in an appeal under Clause 15 of the Letters Patent in that case was an order of transfer of a suit made under Clause 13 of the Letters
Patent. The Supreme Court held that such an order was not a judgment within the meaning of Clause 15 of the Letters Patent and it was not
appealable. The two tests laid down by the Supreme Court are:
(i) whether the order touches upon the merits of the controversy and
(ii) Whether it puts an end to the proceeding.
The Supreme Court held that an order of transfer of a suit did neither and, therefore, not appealable.
Learned Counsel relied on the judgment of a Full Bench of this Court in the case of Southern Roadways (P.) Ltd. Vs. P. Methurai
Veeraswami (died) M. Dhanapalan and Others, . While reiterating the two tests referred to above, the Full Bench held that the word ''judgment'' in
the context in which it has been used in Article 133 of the Constitution can only mean a final determination of the right or liability forming the
subject-matter of controversy before the court which renders the judgment. In that case, it was held that an order on an application under Article
226, whichever way it goes, will be a judgment within the meaning of Clause 15 of the Letters Patent, as it will be a final adjudication of all matters
in controversy in the writ proceedings and which will have the effect of affecting the constitutional remedy of an aggrieved party. This judgment will,
in fact be against the contention of learned Counsel for the respondent.
Our attention was drawn to the judgment of the Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and Another, . The Supreme
Court considered in detail the scope, meaning and purport of the word ''judgment'' found in Clause 15 of the Letters Patent. The court said that,
Whenever, a trial Judge decides a controversy which affects valuable rights of one of the parties, it must be treated to be a judgment within the
meaning of the Letters Patent. Every interlocutory order cannot be regarded as a judgment, but only those orders would be judgments which
decide matters of moment or affect vital and valuable rights of the parties and which work serious injustice to the party concerned. While listing out
the considerations which must be prevail with the court, the Supreme Court said, ""that the interlocutory order in order to be a judgment must
contain the traits and trappings of finality either when the order decides the questions in controversy in an ancillary proceeding or in the suit itself or
in a part of the proceedings"". The court proceeded to give certain illustrations of interlocutory orders which may be treated as a judgments.
Illustration No. 1 is an order granting leave to amend the plaint by introducing a new cause of action which completely alters the nature of the suit
and takes away a vested right of limitation or any other valuable right accrued to the defendant. Illustration 13 is an order staying or refusing to stay
a suit u/s 10 of the Code of Civil Procedure. Illustration 14 is an order granting or refusing to stay execution of the decree. Their Lordships have
also pointed out that the illustrations are not exhaustive. The principle, laid down in the aforesaid judgment go really against the contention of the
respondent''s counsel in this case. If the tests prescribed by the Supreme Court in the above case are supplied, there can be no doubt whatever
that the judgment of the learned single Judge in W.P. No. 1233 of 1994 is a judgment within the meaning of Clause 15 of the Letters Patent as it
puts an end to a valuable right of Registrar of the High Court to challenge a judicial order passed by a learned single Judge before an appropriate
forum.
Learned Counsel also places reliance on the observations of the Chief Justice Chagla in The State of Bombay Vs. Nilkanth Shripad Bhave and
Another, and the observations of the Supreme Court in A.M. Mathur Vs. Pramod Kumar Gupta, . with reference to expunging certain remarks
contained in a judicial order. As pointed out already, they do not have any application in the present case as we are not considering the question of
expunging certain remarks made by the learned single Judge, but deciding the validity of the proposition of law laid down by the learned single
Judge that an administrative head of the High Court who is a party to the proceeding is not entitled to challenge the correctness of a judicial order
passed by a single Judge or even for that matter the Division Bench or Full Bench of this Court in that proceeding.
Viewed in that light, the observations made by the learned single Judge that ""the administrative head of the High Court should set an example
by obeying and implementing the orders of this Court, but, instead, he thought it fit to take it in appeal thinking it as a prestigious issue, and it looks
very unfortunate that such an episode has happened within the precincts of this Court are wholly unwarranted as they are based on an erroneous
view of the learned single Judge on a question of law. The learned single Judge did not stop with it, but went one step further in making a comment
which will to some extent go against the Division Bench itself which entertained the appeal, W.A. No. 290 of 1994, when he said that,
unfortunately the action of the administrative head of this Court has been affixed with the seal of approval by a Division Bench of this Court."" In
the next sentence the learned Judge has proclaimed that he believes in keeping up proprieties and conventions of this Court and desist from saying
anything further. If that is the position, he ought not to have said what he has said. It is not judicial propriety for a single Judge to make a comment
on a Division Bench accepting an appeal from a party or affixing the seal of its approval on the filing of the appeal. As pointed out earlier after
observing that nothing further survived in the writ petition, the only course available to the learned Judge was to have dismissed the writ petition as
in fructuous. In this connection, it is worthwhile referring to the judgment of the Supreme Court cited by learned Counsel for the respondent in the
case of A.M. Mathur Vs. Pramod Kumar Gupta, . to which we have made a reference already. It is pointed out in that case that the Judges cannot
misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. On the facts of the case,
the Supreme Court pointed out that the learned Judge having held that the High Court has no jurisdiction to entertain the review petition ought not
to have commented on the professional conduct of the appellant and that too without an opportunity for him. In the present case, the learned single
Judge having already held that nothing survived in the writ petition, ought not to have made any further comment either on the conduct of the
administrative head of the High Court or on the acceptance of the appeal filed by the Registrar before the Division Bench.
In the circumstances we set aside that part of the judgment of the learned single Judge in which it is declared that the administrative head of the
High Court shall implicitly obey a judicial order issued by the court meaning thereby that such an order shall not be challenged even in an
appropriate forum. The writ appeal is allowed to the extent indicated above. Though we were originally inclined to order costs against the
respondent in this appeal, we have changed our mind on reading paragraph 5 of the affidavit filed by the respondent today in this appeal. The
respondent is not responsible for having taken a good part of our valuable time in arguing this appeal. Hence we make no order as to costs.