The Mayavaram financial Corporation Limited, Mayiladulurai by its Managing Director R. Kalyanasundaram vs The Registrar of Chits, Pondicherry

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1990 Supreme(Mad) 1126

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE MISHRA, THE HONOURABLE MR. JUSTICE BAKTHAVATSALAM & THE HONOURABLE MR. JUSTICE D. RAJN
The Mayavaram financial Corporation Limited, Mayiladulurai by its Managing Director R. Kalyanasundaram
Versus
The Registrar of Chits, Pondicherry
Review C.M.P. No. 1186 of 1988 in W.A. No. 613 of 1932
Decided On :Decided on : 07-12-1990

Advocates Appeared:
For the Petitioner:K. Chandramouli, Senior Counsel for M/s K.N Kothandaraman, K. Veeramani, Advocates.
For the Respondent: K S. Ahmed. Government Pleader.

Headnote:
REVIEW PETITION - JURISDICTION - CHIEF JUSTICE - POWER TO CONSTITUTE BENCH - REVIEW OF JUDGMENT/ORDER PASSED BY DIVISION BENCH - PROCEDURE - APPLICABILITY OF O.47, R.5, C.P.C. - INTERPRETATION OF LETTERS PATENT AND RELEVANT PROVISIONS - INHERENT POWER OF CHIEF JUSTICE TO ALLOCATE JUDICIAL BUSINESS - REVIEW PETITION TO BE HEARD BY JUDGE/JUDGES WHO PASSED THE JUDGMENT/ORDER, UNLESS EXCEPTIONAL CIRCUMSTANCES OR EXTRAORDINARY SITUATION.
Fact of the Case:

A review petition was filed against an order passed by a Division Bench of the High Court. One of the Judges of the Division Bench had ceased to be a Judge of the Court. The review petition was placed before the remaining Judge, who issued notice of motion. The case was then listed before a Division Bench constituted by the Hon'ble Chief Justice, consisting of the remaining Judge of the original Bench and another Judge.
Finding of the Court:

The Court held that the Hon'ble Chief Justice has the inherent power to allocate the judicial business of the High Court, including who of the Judges should sit alone and who should constitute the Bench of two or more Judges. No litigant shall, upon such constitution of a Bench or allotment of a case to a particular Judge of the Court will have a right to question the jurisdiction of the Judges or the Judge hearing the case. No person can claim as a matter of right that this petition be heard by a single Judge or a Division Bench or a particular single Judge or a particular Division Bench. No Judge or a Bench of Judges will assume jurisdiction unless the case is allotted to him or them under the orders of the Hon'ble Chief Justice.
Issues: 1. Whether the Hon'ble Chief Justice has the power to constitute a Bench to hear a review petition against an order passed by a Division Bench, one of whose Judges has ceased to be a Judge of the Court? 2. Whether O.47, R.5, C.P.C. applies to a review petition against an order passed in a writ proceeding?
Ratio Decidendi: 1. The Hon'ble Chief Justice has the inherent power to allocate the judicial business of the High Court, including who of the Judges should sit alone and who should constitute the Bench of two or more Judges. This power is not restricted by any provision in the Letters Patent or the Code of Civil Procedure. 2. O.47, R.5, C.P.C. does not apply to a review petition against an order passed in a writ proceeding. However, the Court may constructively apply certain basic principles enshrined therein to the writ proceedings, on grounds of public policy or dictates of reason or necessity whenever it is found to be essential for the effective administration of justice.
Final Decision: The Court answered the question referred to it accordingly and directed that the review petition be listed before the appropriate Bench for disposal.

Judgment :-

1. On a preliminary point to the hear ing of a review petition by a Division Bench that interms of Order 47. R. 5 of the C.P.C. where the Judge or Judges, or any one of the Judges, who passed the dec ree or made the order, a review of which is applied for, continues or continue attached to the Court at the time when the application for a review is presented and is not or are not precluded by absence of other cause for a period of six months next after the appli cation from considering the decree or order to which the application refers, such Judge or Judges or any of them shall and no other Judge or Judges of the Court shall hear the same, a Bench comprising of two of us refer red the matter to the Honble the Chief Justice for constituting a larger Bench, and the case has accordingly been brought before us.

2. The petitioner moved this Court in a Writ Petition No. 4015 of 1986 under Art. 226 of the Constitution of India for a Writ of Mandamus or any other writ or direction in the nature of writ to forbear the respondent from demanding or collecting any additional fee under S. 6 of the Pondicherry Chit Fund Act of 1966. The petition was heard by Nainar Sundaram, J. who passed the order dated 23 1-1901 dismissing the same. The petitioner preferred an appeal in W.A. No. 613 of 1982 2 . The said appeal was heard by a Bench consisting of Mohan, J. as he then was and Bakthavat, salam, J. who dismissed the appeal by an order dated 27-9-1988 saying?

“After hearing Mr. K. Chandra Mouli, learned counsel for the appellant and the learned Government Pleader, Pondicherry, we are of the view that excepting to clarify the following points, we do not think of interfering with the judgment.

The clarification is:

Should the appellant prove that the subscribers have not been paid the first instalment, there is no necessity to follow the procedure set out under Ss, 20 and 21 of the Pondicherry Chit Funds Act of 196b, This is because in law he becomes a subscriber only on payment of the first instalment. The writ appeal is dismissed, No costs.”

3. Petitioner thereafter filed the instant review petition on 27-10-1988. By the time, however, the review petition was made ready after its representation by the petitioner on 12-1-1989 and thereafter for being listed before the appropriate Bench for hearing for admission/order, Mohan, J. ceased to be a Judge of this Court. The review petition however was listed for admission before Bakthavat salam, J, who on 3-1-1990 ordered for notice of motion. Office of the Court however placed the records of the case before the Honble Chief Justice on for constituting a Bench for hearing of the review petition after notice. The Honble Chief Justice on 17-8-1990 ordered for placing the review petition before a Division Bench of which Bakthavatsalam, J, who had constituted the Division Bench with Mohan, J. in hearing the writ appeal, was a member and accordingly the review petition came up before the Division Bench, consisting of Mishra, and Bakthavatsalam, JJ. on 27-8-1990.

4. A preliminary objection whether the Bench was competent to hear the review petition his thus come up before this Bench.

5. The history of the creation of this Court goes to the period of King George III of Great Britain when under the Letters Patent dated 26-12 1818 a Supreme Court of Judicature at Madras was established followed by its revocation under the Letters Patent dated 26.6.1862 under which the High Court of Judicature for the Presidency ot Madras was created, soon to be re-constituted by the Letters Patent dated 28-12-1865. Ever-since its establishment under the Letters Patent dated 28-12-1865 of Queen Victoria of the United Kingdom, it has exercised its such civil, criminal, admirality, Vice-Ad-mirality, testamentary, intestate and matrimonial jurisdiction, original and appellate and all such powers and authorities for and in relation to the administration of Justice as are conferred upon it under the said Letters Patent and/or

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