CM APPL. 31661/2021 & CM APPL. 3761/2023 in W.P.(C) 4166/2019
2023:DHC:5643
civilpetition_dismissedSignificant
AI Summary
The Delhi High Court dismissed applications under Section 151 CPC seeking directions for amendment approval and leave, holding that such applications cannot reopen or review a disposed writ petition and must be exercised with judicial restraint.
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CM APPL. 31661/2021 & CM APPL. 3761/2023 in W.P.(C) 4166/2019 HIGH COURT OF DELHI Date of order: 2nd August, 2023
CM APPL. 31661/2021 & CM APPL. 3761/2023 in W.P.(C) 4166/2019 SONIA ..... Petitioner Through: Ms. Mallika Bhatia Arora, Advocate (Through VC)
VERSUS
HIGH COURT OF DELHI Through: Mr. Rajat Aneja, Advocate for Delhi High Court Ms. Laavanya Kaushik, Advocate for R-2 Mr. Anil Soni and Mr. Devvrat Yadav, Advocate for UOI
1. The instant application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the petitioner/applicant seeking the following reliefs: ―(i) Direct Principal Secretary (Law, Justice And L.A.) to obtain approval of Central Government in respect of amendment made to Rule 41(1) Of Chapter – Viii (Miscellaneous) of The Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012 as recommended By Hon‘ble Full Court of this Court:
(ii) Pass any such other orders as it may deem fit to this
2. Learned counsel of the petitioner/applicant submitted that the petitioner is employed as a Stenographer Grade- III in the office of respondent No.2, District & Sessions Judge, Tis Hazari Court and is unable to effectively discharge her duties of Stenographer Grade-III because of her hearing difficulty. The petitioner made a representation dated 22nd December 2018, to respondent No.2 praying for change of her cadre from Stenographer to a cadre of an equivalent grade on Clerical or Ministerial side on the medical ground.
3. It is submitted that upon receiving no response to the said representation of the petitioner filed the above captioned writ petition, which was disposed of vide order dated 23rd April 2019 by Predecessor of this Court directing the respondent no.2 to decide the said representation made by petitioner within 4 weeks of date receipt of the order.
4. It is submitted that the instant application has been filed by the applicant/petitioner seeking that direction to be given to Principal Secretary (Law, Justice And Legal Affairs) to obtain approval of Central Government in respect of amendment made to Rule 41(1) of Chapter – Viii (Miscellaneous) of The Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012
5. It is submitted that this Court acting on the recommendations of “Committee for Amendment/Review of the Rules of the Appointment, Conditions of Service etc of the Officials/Employees of Delhi High Court/District Courts” recommended the amendment of Rule 41(1) of Chapter-VIII (Miscellaneous) of the Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012. The said amendment stated that stenographers of all grades may be permitted by the Appointing Authority, to change their cadre to a cadre of an equivalent grade on the clerical or ministerial side.
6. It is contended that the said amendment in Rule 41(1) of Chapter-VIII (Miscellaneous) of the Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012 required prior approval of the Central Government before the same could be notified by the Registrar General, High Court of Delhi. It is submitted that the Registrar General, High Court of Delhi sent a letter dated 15th November 2019 to the Principal Secretary (Law, Justice and Legal Affairs), requesting him to obtain approval of the Central Government at the earliest.
7. It is submitted that the Principal Secretary (Law, Justice and Legal Affairs) wrote letter dated 14th May 2020 to the Registrar General, High Court of Delhi to provide financial implications (recurring/non-recurring) involved in the matter to enable the Central Govt. to take action in the matter. It is contended that no action has taken place by Principal Secretary regarding approval of the said amendment.
8. It is submitted that the delay in enacting of the amendment is causing grave prejudice to the petitioner since it is difficult for the petitioner to continue working at the post of Stenographer Grade-III on account of grave hearing impairment/difficulty being faced by her.
9. Hence, in view of the foregoing submissions, the petitioner seeks that a direction may be issued to the Principal Secretary (Law, Justice And Legal Affairs) to obtain the approval of Central Government in respect of the amendment made to the Rule 41(1) Of Chapter – Viii (Miscellaneous) of The Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012.
10. Per Contra, learned counsel for the respondents vehemently opposed the averments made by the counsel for the petitioner and submitted that no such application can be entertained by this Court, since the writ has been disposed of by the Predecessor of this Court vide order dated 23rd April
2019.
11. It is submitted that the instant application is filed after the disposal of the petition is a misuse of the power vested in this Court under Section 151 of the Code of the Civil Procedure, 1908, by the petitioner.
12. It is submitted that the the relief which has been claimed by the petitioner/applicant in the present application does not bring out the real issue for adjudication.
13. It is submitted that the application should be dismissed being devoid of merits.
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14. Heard both the parties and perused the content of the petition along with the present application filed by the petitioner.
15. The issue for adjudication before this Court is: ―Whether in a disposed of writ a direction may be issued by this Court to direct Principal Secretary (Law, Justice And L.A.) to obtain approval of Central Government in respect of amendment made to Rule 41(1) Of Chapter – Viii (Miscellaneous) of The Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012 in an application under Section 151 of Code of Civil Procedure, 1908‖
16. Under Section 151 of the Code of Civil Procedure, 1908 gives unrestrained power to this Court to serve justice in every case, whether given under the Code of Civil Procedure or not. It is an enabling provision to do justice in the absence of a definite or separate provision. However, the same should be exercise in a restrained way such that it does not override any of the statutory provisions. Therefore, when there is an alternative remedy available with the applicant, then the applicant is not entitled to any relief under Section 151 of the Code of Civil Procedure, 1908. The power of this Court under Section 151 of the Code of Civil Procedure, 1908 should be exercised only in exceptional circumstances.
17. There has been an increasing trend of litigants filing application under Section 151 of the Code of Civil Procedure, 1908 after the disposal of the case by way of order disposing of the matter or by pronouncement of the judgment seeking a modification/recall/clarification of the order/judgment finally passed. These applications filed on the pretext of modification/recall/clarification are filed with a malafide intention of seeking review of the order or judgment which has finally disposed of the matter. Such kind of malpractice is merely increasing the pendency of the cases and needs to nip in the bud. Only in exceptional circumstances such kind of application should be entertained by the Court.
18. The abovesaid principle has also been reiterated by the Hon‟ble Supreme Court in the judgment of State of Haryana v. Babu Singh, (2008) 2 SCC 85 as follows:
“18. The High Court's order is not sustainable for yet another reason. As noticed above, first Writ Petition No. 2890 of 1997 was dismissed with costs for the highly contumacious conduct of the respondent for producing a fabricated document in regard to seeking of unconditional voluntary retirement from the service. We may again repeat that no claim for pensionary benefits was made by the respondent in Writ Petition No. 2890 of 1997 nor had he applied for review of the order dated 31-8- 1998 whereby his petition was dismissed. Thus, the order dated 31-8-1998 passed by the Division Bench of the High Court in CWP No. 2890 of 1997 has attained finality. It is well settled that the relief granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of the legal reasoning and the legitimacy of the conclusions. The possession of powers under Section 151 CPC by the courts itself is not sufficient, it has to be exercised in accordance with law. The orders of the courts must emanate logically from legal findings and the judicial results must be seen to be principled and supportable on those findings. 19. In State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319] this Court recorded a note of caution that when proceedings under Article 226 of the Constitution of India stand terminated by final disposal of writ petition, it is not open to the Court to reopen the proceedings by means of a
miscellaneous application. SCC pp. 187-88, para 10 of the decision reads as under: ―10. The High Court's order is not sustainable for yet another reason. Respondents' writ petition challenging the order of dismissal had been finally disposed of on August 10, 1984, thereafter nothing remained pending before the High Court. No miscellaneous application could be filed in the writ petition to revive proceedings in respect of subsequent events after two years. If the respondent was aggrieved by the notice dated 29-1-1986 he could have filed a separate petition under Article 226 of the Constitution challenging the validity of the notice as it provided a separate cause of action to him. The respondent was not entitled to assail validity of the notice before the High Court by means of a miscellaneous application in the writ petition which had already been decided. The High Court had no jurisdiction to entertain the application as no proceedings were pending before it. The High Court committed error in entertaining the respondent's application which was founded on a separate cause of action. When proceedings stand terminated by final disposal of writ petition it is not open to the court to reopen the proceedings by means of a miscellaneous application in respect of a matter which provided a fresh cause of action. If this principle is not followed there would be confusion and chaos and the finality of proceedings would cease to have any meaning.‖ (emphasis supplied)
20. In our view, it would be in the fitness of things to follow the aforesaid principle as laid down by this Court in Brahm Datt
Sharma [(1987) 2 SCC 179: (1987) 3 ATC 319] in the facts and circumstances of the instant case. The High Court, therefore, was not justified in granting relief to the respondent in a proceeding under Section 151 CPC, filed in the decided writ petition.”
19. Recently, the Hon‟ble Supreme Court in the case of Supertech Limited v. Emerald Court Owner Resident Welfare Association and Others, 2021 SCC OnLine SC 3422 while dealing with a miscellaneous application has enunciated on aspect of filing application after the disposal of the matter and held as follows:
“7. The judgment of this Court dated 31 August 2021 has affirmed the direction which was issued by the Division Bench of the Allahabad High Court for the demolition of Tower 16 and Tower 17. This is evident from the ultimate conclusions and directions contained in paragraph 186(i) to (v) of the judgment. In essence, what the applicant seeks in the present application is that the direction for the demolition of Tower 16 and Tower 17 should be substituted by the retention of Tower 16 in its entirety and slicing of a portion of Tower 17. Clearly, the grant of such a relief is in the nature of a review of the judgment of this Court. 8. In successive decisions, this Court has held that the filing of applications styled as ―miscellaneous applications‖ or ―applications for clarification/modification‖ in the guise of a review cannot be countenanced. In Gurdip Singh Uban (supra), Justice M Jagannadha Rao, speaking for a two-Judge Bench of this Court observed: ―17. We next come to applications described as applications for ―clarification‖, ―modification‖ or ―recall‖ of judgments or orders finally passed. We may point out that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application has first to go before the learned Judges in circulation and it will be for the Court to consider whether the
application is to be rejected without giving an oral hearing or whether notice is to be issued. Order XL Rule 3 states as follows: ―3. Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct notice to the opposite party….‖ In case notice is issued, the review petition will be listed for hearing, after notice is served. This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of ―no hearing‖, we find that sometimes applications are filed for ―clarification‖, ―modification‖ or ―recall‖ etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. By describing an application as one for ―clarification‖ or ―modification‖, — though it is really one of review — a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. (See in this connection a detailed order of the then U.P. [(1982) 2 SCC 398] deprecating a similar practice.)
18. We, therefore, agree with the learned Solicitor General that the Court should not permit hearing of such an application for ―clarification‖, ―modification‖ or ―recall‖ if the application is in substance one for review. In that event, the Court could either reject the application straight away with or without costs or permit withdrawal with leave to file a review application to be listed initially in chambers.‖
9. The same view has been expressed in a subsequent decision in Ram Chandra Singh (supra) wherein another two-Judge Bench of this Court observed as follows: ―15. In Gurdip Singh Uban [(2000) 7 SCC 296] the law has been laid down in the following terms: ―17. … This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open court. However, with a view to avoid this procedure of ‗no hearing‘, we find that sometimes applications are filed for ‗clarification‘, ‗modification‘ or ‗recall‘ etc. not because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order 40 Rule 3 relating to circulation of the application in chambers for consideration without oral hearing. By describing an application as one for ‗clarification‘ or ‗modification‘, — though it is really one of review — a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly.‖
16. In Common Cause [(2004) 5 SCC 222] Lahoti, J. (as the learned Chief Justice then was) speaking for a Division Bench observed: ―2. … We are satisfied that the application does not seek any clarifications. It is an application seeking in substance a review of the judgment. By disguising the application as one for ‗clarification‘, the attempt is to seek a hearing in the open court avoiding the procedure governing the review petitions which, as per the rules of this Court, are to be dealt with in chambers. Such an attempt on the part of the applicant has to be deprecated.‖
17. Recently in Zahira Habibullah Sheikh v. State of Gujarat [(2004) 5 SCC 353: 2004 SCC (Cri) 1613] referring to Order 40 Rule 3, this Court opined: ―6. As noted by a Constitution Bench of this Court in P.N. Eswara Iyer v. Registrar, Supreme Court of India [(1980) 4 SCC 680], Suthendraraja v. State [(1999) 9 SCC 323: 2000 SCC (Cri) 463], Ramdeo Chauhan v. State of Assam [(2001) 5 SCC 714: 2001 SCC (Cri) 915] and Devender Pal Singh v. State, NCT of Delhi [(2003) 2 SCC 501: 2003 SCC (Cri) 572] notwithstanding the wider set of grounds for review in civil proceedings, it is limited to ‗errors apparent on the face of the record‘ in criminal proceedings. Such applications are not to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with a great sense of responsibility as well.
7. In Delhi Admn. v. Gurdip Singh Uban [(2000) 7 SCC 296] it was held that by describing an application as one for ‗clarification‘ or ‗modification‘ though it is really one of review, a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open court. What cannot be done directly cannot be permitted to be done indirectly. The court should not permit hearing of such an application for ‗clarification‘, ‗modification‘ or ‗recall‘ if the application is in substance a clever move for review.‖
10. More recently, another two-Judge Bench in Rashid Khan Pathan - In Re: Vijay Kurle (supra) held as follows: ―9. In a country governed by the rule of law, finality of the judgment is absolutely imperative and great sanctity is attached to the finality of the judgment. Permitting the parties to reopen the concluded judgments of this Court by filing repeated interlocutory applications is clearly an abuse of the process of law and would have far-reaching adverse impact on the administration of justice.‖
11. The attempt in the present miscellaneous application is clearly to seek a substantive modification of the judgment of this Court. Such an attempt is not permissible in a miscellaneous application. While Mr. Mukul Rohatgi, learned senior counsel has relied upon the provisions of Order LV Rule 6 of the Supreme Court Rules, 2013, what is contemplated therein is a saving of the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent an abuse of the process of the Court. Order LV Rule 6 cannot be inverted to bypass the provisions for review in Order XLVII in the Supreme Court Rules, 2013. The Miscellaneous application is an abuse of the process.
12. The hallmark of a judicial pronouncement is its stability and finality. Judicial verdicts are not like sand dunes which are subject to the vagaries of wind and weather[6]. A disturbing trend has emerged in this court of repeated applications, styled as Miscellaneous Applications, being filed after a final judgment has been pronounced. Such a practice has no legal foundation and must be firmly discouraged. It reduces litigation to a gambit. Miscellaneous Applications are becoming a preferred course to those with resources to pursue strategies to avoid compliance with judicial decisions. A judicial pronouncement cannot be subject to modification once the judgment has been pronounced, by filing a miscellaneous application. Filing of a miscellaneous application seeking modification/clarification of a judgment is not envisaged in law. Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [―Quando aliquid prohibetur ex directo, prohibetur et per obliquum‖].
13. Further, there is another legal principle which is applicable in the present case. It is that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden[7]. Hence, when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all and other methods of performance are necessarily forbidden[8]. This Court too, has adopted this maxim[9]. This rule provides that an expressly laid down mode of doing something necessarily implies a prohibition on doing it in any other way.‖
20. The powers vested in this Court by virtue of Section 151 of the Code of Civil Procedure, 1908, have to be exercised in accordance with the law. The relief granted by this Court under Section 151 of the Code of Civil Procedure, 1908 must be logical and tenable within the framework of the law. The relief not be given on the basis empathy and kindness towards the party seeking such relief.
21. In the present case, the petitioner is suffering from certain health issues and is seeking enactment of the Rule 41(1) Of Chapter – Viii (Miscellaneous) of The Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012, which is pending for the approval of the Central Government. The petitioner is seeking direction to be given by this Court to the Principal Secretary for seeking such approval of the Central Government.The said amendment would entitle the petitioner to change her cadre from Stenographer to a cadre of an equivalent grade on the Clerical or Ministerial side.
22. The relief in the captioned writ petition which has been disposed of has been reiterated as under: ―Issue a writ of mandamus directing the respondents to change the cadre of petitioner from Stenographer to a cadre of equivalent grade on Clerical or Ministerial side on medical ground;‖
23. The relief which the petitioner is seeking in the captioned petition which has been disposed of and the instant application is same. This application is merely restating the relief prayer of the petition with twisting of the words and regarding which the Predecessor of this Court has already adjudicated upon. There is nothing new which has been prayed by the petitioner.
24. This Court is of the view that relief which the petitioner is seeking by way of instant application a review of the order passed by this Court disposing of the captioned petition which has already been disposed of. Since, adjudication of the instant application would amount to readjudication upon the relief of the captioned petition which has been disposed of.
25. The prayer sought by the petitioner cannot be granted, therefore, direction cannot be issued to the Principal Secretary (Law, Justice and L.A.) to obtain the approval of the Central Government in respect of amendment made to Rule 41(1) Of Chapter – Viii (Miscellaneous) of The Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012.This Court cannot override its jurisdiction by issuing such a direction under Section 151 of the Code of Civil Procedure, 1908.
26. This Court is of the view that such kind of application is like digging up of graves and giving life to dead beings, since the Court has already adjudicated upon the dispute and has given its finding. Such applications filed under Section 151 of the Code of Civil Procedure, 1908 in the guise of „clarification‟, „modification‟ or „recall‟ are filled for seeking a review of the order on the merits of the judgment/order passed by the Court adjudicating the matter.
27. In view of the foregoing facts and circumstances, this Court does not find any cogent reasons to allow the instant application.
28. Accordingly, the instant application is dismissed. CM APPL. 3761/2023 (Direction)
1. The instant application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of the petitioner/applicant seeking the following reliefs: ―(i) Issue directions to the Office of the Principal District & Sessions Judge South District, Saket Courts to allow the Petitioner to proceed on fully paid leave until the proposed amendment to Rule 41(1) of the Chapter VIII (Miscellaneous) of the Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012 is notified by the Central Government.
(ii) Pass any other orders as it may deem fit to this Hon‘ble
2. Learned counsel for the petitioner submitted that the present application has been filed by the petitioner against order dated 2nd December 2022 as per which the petitioner‟s application dated 28th November 2022 seeking grant of leaves (Half- pay Leaves/ Extra Ordinary leaves) has been declined by the Office of the Principal District & Sessions Judge, South District, Saket Courts.
3. It is further submitted that on 7th December 2022, the office of the Principal District & Sessions Judge South District, Saket Courts directed that disbursement of the salary is stopped with immediate effect till further orders since the petitioner has not joined the office.
4. The learned counsel for the petitioner submitted that the present application may be allowed and the directions be issued to the office of the Principal District & Sessions Judge, South District, Saket Courts to allow the petitioner to proceed on fully paid leave till the proposed amendment to the Rule 41(1) of the Chapter VIII (Miscellaneous) of the Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012 is notified by the Central Government.
5. Per Contra, Learned counsel for the respondents has vehemently opposed the contentions of the petitioner and submitted that the facts enunciated in the application are subsequent to disposal of the petition. Hence, the same could not be entertained by this Court under Section 151 of the Code of Civil Procedure, 1908.
6. It is submitted that the application should be dismissed being devoid of merits.
7. Heard both the parties and perused the content of the petition along with the present application filed by the petitioner.
8. The present application has been filed by the petitioner against order dated 2nd December 2022 as per which the petitioner‟s application dated 28th November 2022 seeking grant of leaves (Half- pay Leaves/ Extra Ordinary leaves) has been declined by the Office of the Principal District & Sessions Judge, South District, Saket Courts. Furthermore, on 7th December 2022, the office of the Principal District & Sessions Judge South District, Saket Courts directed that disbursement of the salary is stopped with immediate effect till further orders since the petitioner has not joined the office.
9. In the present application, the petitioner is seeking that due to her health issues, she may be allowed fully paid leave until the proposed amendment to the Rule 41(1) of the Chapter VIII (Miscellaneous) of the Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012 is notified by the Central Government.
10. This Court is of the view since the petitioner‟s prayer is based on the facts which have arisen after the captioned petition was disposed of. Since, the petition was disposed of on 23rd April 2019 while the cause of action in the instant application has arisen on 2nd December 2022 and 7th December 2022.Therefore, the instant application discloses certain facts which were not part of the petition.
11. Thus, this Court cannot grant the prayer as prayed by the petitioner on the basis of subsequent events in the captioned writ petition which has been disposed of. Under Section 151 of the Code of Civil Procedure, 1908, no orders can be passed by this Court since an alternative remedy is available to the petitioner in this regard.
12. In view of the foregoing facts and circumstances, this Court does not find any cogent reasons to allow the instant application.
13. The order to be uploaded on the website forthwith.
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