2010 Supreme(Kar) 361

IN THE HIGH COURT OF KARNATAKA
THE HONOURABLE MR. JUSTICE N. KUMAR & THE HONOURABLE MR. JUSTICE B. SREENIVASE GOWDA
Balachandra Vigneshwara Dixit Uttara Kannada District
Versus
H.S. Srikanta Babu & Others
Decided on : 26-03-2010

Headnote:CODE OF CIVIL PROCEDURE, 1908 - Sections 152, 153, 114 & Order 47 Rule 1: [N. Kumar & B.Sreenivase Gowda,JJ] Review - Held, Sections152 and 153-A of Code of Civil Procedure, 1908 are different from the provisions of review contained in Section 114, Order 47, Rule 1 of CPC. They deal with different powers. In fact, a review under Order 47, Rule 1 and amendment under Section 152 are totally different concepts. In the case of a review, the correctness of the judgment, decree or order is in question, while in the case of an amendment of decree, the correctness of the judgment is assumed and the jurisdiction is for bringing the decree in conformity with the judgment. Again where a review is allowed, the case has to be reheard on merits but not if an amendment is allowed. In the case of review, a fresh decree is passed while in the case of an amendment the same decree is to be amended. Further, A prayer for review is a prayer for judicial re-examination of the case in certain specified facts and/or circumstances. It is re-examination of a proceeding already concluded. Review is of two types. (a) Procedural and (b) substantive. Every Court or Tribunal has an inherent power of procedural review. Article 226 of the Constitution of India has conferred a plenary power upon the High Court to exercise the jurisdiction thereunder, a power to review is implied in the said provision itself. Power of review inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or correct grave or palpable errors committed by it.

       CONSTITUTION OF INDIA - Article 226: [N.Kumar & B.Sreenivase Gowda,JJ] Power of the High Court to issue Writs - Introduction of Clause (2) of Article 226 by 15th Amendment to the Constitution - Cause of action to file the Writ - Cause of action and Writ jurisdiction - Held, Article 226 (1) firstly confers power on the High Court to issue Writs throughout the territories in relation to which it exercises jurisdiction, i.e., to say the Writs issued by the Court cannot run beyond territories subject to its jurisdiction. Secondly, the person or authority against whom the said Writ it issued should be within the State or territories over which the said High Court has jurisdiction. In other words, the person or authority must be residing or located within those territories. After the 15th Amendment to the Constitution, by introduction of Clause (2) of Article 226, power is conferred on the High Courts to exercise jurisdiction beyond the territories of the State over which it has jurisdiction. Such a power is conferred subject to the fulfilment of one condition that the cause of action for issue of such Writ should wholly or in part arise within the jurisdiction of the State over which it has jurisdiction. Further, When cause of action arises partly in one specified area and partly outside the specified areas the litigant will have the choice to institute proceedings either at the Court where cause of action arisen party or outside. The Court will find out in each case whether the jurisdiction of the Courtis rightly attracted by the alleged cause of action or not. This finding is to be recorded on the judicial side by the Judge hearing the matter, after looking into the material placed before him and the proceedings of the parties. This cannot be decided by the Chief Justice on the administrative side, without hearing the parties, or by the High Court office looking into the cause title, the address mentioned therein or the impugned order.

       KARNATAKA HIGH COURT RULES, 1959 - Chapter III Rule 5: [N.Kumar & B.Sreenivase Gowda,JJ] Application for review -Circular issued by the Chief Justice directing Review petitions to be posted as per the roster existing in the Circuit Bench - Legality of - Held, The review petitions shall be heard by the original Bench which has passed the order which is sought to be reviewed, unless the Bench is not available by reason of death, retirement or absence. The said circular does not make any reference to the reason for constituting a different Bench at all. The circular dated 29.12.2008 directing review petitions to be posted as per the roster existing in the Circuit Bench is contrary to Rule 5 of Chapter III of the Karnataka High Court Rules. Ignoring the statutory provision, if he arranges the roster contrary to law, it has no legal effect, arrangement of roster being an administrative action, such action is amenable to writ jurisdiction of the High Court. Therefore, the general circular as issued by way of Notification No. HCE/CBD/01/2008 is ultra vires and void and cannot be given effect to. It has no force of law. Further, the need or occasion for the Chief Justice to exercise the power under Rule 5 arises only when the ’original Bench is not available by reason of death, retirement or absence’. Only then the Chief Justice gets the power under Rule 5 to constitute a Bench in the same manner as the original Bench. Therefore, the words ’not available’ assumes significance. Only if a Judge retires, dies or is incapable of discharging the duties for any reason, it could be said that a Judge is ’not available’. The absence of a Judge should render him not available to the Chief Justice to constitute a Bench. Only when a Judge is not able to discharge his judicial functions, it can be said that he is ’not available’ to the Chief Justice to constitute the Bench. A Judge may be very much present at a place, but not able to discharge the judicial functions. Therefore, the absence is not from the place; the absence of a Judge should result in the non-availability of the Judge to constitute the Bench and utilize his services. The word ’absence’ is an act which should be attributed to the Judge. His act should resulting absence rendering him not available to the Chief Justice to constitute the Bench. When a High Court has more than one place of sitting, and the Chief Justice arranges the roster, naturally a Judge cannot sit at more than one place at a time. It cannot be said that he is absent at the place he is not sitting. The absence should be from sitting at all the Benches of the High Court, and further not available to the Chief Justice to constitute a Bench. Therefore, it cannot be said that he is not available by reason of ’absence’ from constituting the original Bench.

       STATE RE-ORGANISATION ACT, 1956 - Part V, Sections 51 (3), 52, 54, 69 & Constitution of India, Article 226 & High Court of Karnataka Rules, Rule 5: [N.Kumar & B.Sreenivase Gowda,JJ] Power of the Chief Justice to allocate the business of the High Court -Whether the Principal Bench is precluded from hearing the matters arising at Circuit Benches at Dharwad and Gulbarga? Held, The Jurisdiction of a judge to hear a case according to roster prescribed by the Chief Justice should not be confused with the jurisdiction of the High Court to decide the case on merits, including the question of territorial jurisdiction, which are governed by Article 226 of the Constitution and other Statutory provisions. Further, The residence or location of a person affected by an order cannot be the only criterion to determine the jurisidiction of the High Court. That jurisdiction depends on the person or authority passing the order being within those territories, and the residence/location of the person affected in such cses would have no relevance on the question of the High Court’s jurisdiction. It may be that the original order was in favour of the person applying for Writ; in such cases an adverse appellate order might be the cause of action. If the cause of action arises wholly or in part at a place within the specified areas, then such Bench would have jurisdiction. If the cause of action arises partly within the specified areas, it would be open to the litigant who is the dominus litis, to choose the forum according to his convenience. A litigant has the right to go to Court where a part of the cause of action arises. If a litigant from Dharwad/Gulbarga chooses to approach the Principal Bench as according to him it is convenient, convenience being of paramount consideration, the principal Bench at Bangalore cannot ask him to go to the Circuit Benches either at Dharwad or Gulbarga, as the jurisdiction to decide any matter arising within the jurisdiction of the State of Karnataka lies with the Principal Bench at Bangalore, notwithstanding the constitution of the Circuit Benches at Dharwad and Gulbarga. It is for the litigant to decide the convenience. Others have no say in the matter including the Chief Justice. By constitution of a Circuit Bench, the Principal Bench does not lose its jurisdiction to decide matters arising in the entire State. When the Circuit Benches are constituted and the Chief Justice decides what matters the Circuit Benches would decide, it is only to enable the litigant who fall within the area of such Circuit Bench to have the benefit of hearing of the case nearer to his place of residence. It is the convenience of the litigant which is the paramount consideration. By constitution of such Circuit Benches the litigant is not prevented from approaching the Principal Bench. If he so chooses to do, the choice is of the litigant. If the Chief Justice were to hold a litigant has no right to approach the Principal Bench, it amounts to territorial bifurcation of the High Court for which he has no power. In substance, the said circular is nothing but a roster prescribed by the Chief Justice arranging work at the Circuit Benches. It does not define the jurisdiction of the High Court sitting in Circuit. By that circular, the High Court at the principal bench has not lost its territorial jurisdiction to decide a matter arising within the territorial jurisdiction of those districts. If the Notification issued by the Chief Justice were to be interpreted as taking away the jurisdiction of the Principal Bench to hear disputes arising within the jurisdiction of Dharwad/Gulbarga Circuit Benches, then it amounts to territorial bifurcation of the State of Karnataka for which he has no power.