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2016 Supreme(Del) 2325
IN THE HIGH COURT OF DELHI AT NEW DELHI
J.R. MIDHA, J.
FORMOSA PLASTICS CORPORATION USA - Petitioner
Versus
ASHOK CHAUHAN & ORS. - Respondents
EX.P.38/1998 and EX.APPL.(OS) 438/2011, 439/2011 & 414/2016
Decided On : 13-07-2016
For the appellant :Ms. Shyel Trehan and Ms. Manjira Das Gupta, Advocates.
For the Respondent:Mr. Rajiv Nayar, Sr. Advocate with Mr.Shyam Singh, Advocate, Mr. A.P. Singh, Adv., Mr. A.S. Chandhiok, Sr. Advocate, with Mr. Rajan Chawla, Advocate.
The Court has the inherent power to rectify its orders to prevent injustice, and the duty to do justice prevails over technicalities.
Headnote:
Suo Moto Power - Correction of Order - Delhi High Court Act, 1966, Article 225 of the Constitution of India - Sections 151, 152, 153 of the Code of Civil Procedure
Fact of the Case:
The Court recalled its order dated 31st March, 2011, as it was partly heard by another judge and was not assigned to the bench that dismissed it. The Court exercised its suo moto power under Sections 153, 151, and 152 of the Code of Civil Procedure.
Finding of the Court:
The Court found that the order dated 31st March, 2011 was an inadvertent defect/error and warranted correction. It held that the power to rectify the defect/errors to prevent injustice is wide and that the duty to do justice prevails over technicalities.
Issues: The main issue was whether the Court had the power to recall its order dated 31st March, 2011, and whether the order had merged with the judgment dated 18th May, 2016.
Ratio Decidendi: The Court's decision was based on the interpretation of the Delhi High Court Act, 1966, Article 225 of the Constitution of India, and Sections 151, 152, 153 of the Code of Civil Procedure. It emphasized the duty of the Court to ensure justice and rectify its errors to prevent injustice to any party.
Final Decision: The Court recalled its order dated 31st March, 2011 and dismissed certain applications as infructuous. It directed the case to be listed before the Regular Roster Bench.
1. On 31st March, 2011, this Court dismissed Ex. P. 38/1998 as there was no appearance on behalf of the decree holder.
2. The decree holder filed an application for restoration of the petition which was dismissed as time barred on 02nd August, 2011. The decree holder filed an application for review of the order dated 02nd August, 2011, which was also dismissed on 20th September, 2011. The decree holder preferred two appeals before the Division Bench, namely, EFA(OS) No.42/2011 against the order dated 31st March, 2011 and EFA(OS) No. 41/2011 against the orders dated 02nd August, 2011 and 20th September, 2011.
3. Vide judgment dated 18th May, 2016, the Division Bench has allowed the appeals and remanded back the matter to this Court to consider whether the decree holder has disclosed sufficient cause for delay in filing I.A. 438/2011 for setting aside of the order dated 31st March, 2011. The relevant portion of the judgement dated 18th May, 2016 is reproduced hereunder:-
“18. .... The case was accordingly adjourned to 26th October, 2010, whereupon, it was further adjourned to 15th November, 2010. On that day, the matter was heard in part. It is not in dispute that the withdrawal of EA 538/2010 was because two application urging the same contentions, i.e. that the appellant could not maintain the execution proceeding were pending (EA 525/1999 and EA 569/1999). The relief claimed in the applications which essentially urged that the execution proceedings were not maintainable, were heard on 15.11.2010. On 16th December, 2010, the learned judge did not sit, as he was on leave. The next date of hearing was 31-03-2011; on that date, Midha, J dismissed the entire execution for non-prosecution. A plain reading of the said order would show that the learned judge did not take into consideration the fact that the matter was part-heard by Justice Shali”.
“20. The decision of the above question itself would be determinative of the issue of maintainability. However, since counsel had also urged the issue of jurisdiction of the learned single judge who dismissed the execution (Midha, J), it would be necessary to return findings on that aspect. There is no dispute that the power of settling the roster of hearing of cases and their categorization for the purpose, is exclusively that of the Chief Justice. Rule 5 of the Delhi High Court notification dated 12.12.1966, in the exercise of power conferred under Section 7 of the Delhi High Court Act, 1966, empowers the Chief Justice to settle the roster:
“...The List shall be published in accordance with the roster settled by the Hon’ble Chief Justice.” This norm obliges every judge of this court to exercise her (or his) jurisdiction strictly in accordance with the roster allocation; Prakash Chand underlined this in the following terms:
“it follows that no judge or a Bench of judges can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from it can be permitted.”
Article 225 of the Constitution of India provides that:
“Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution”.
21. The Note appended to the roster drawn in which Justice Midha was assigned cases, including execution matters, clearly stated that “Part-heard” matters were not assigned. They remained with the judge
