Final Order 1

Order Details: Other
Pdf Text: St. 2388/19 Adv. Amritpal Singh, plaintiff no. 1 h/f Adv. C. J. Joveson for
plaintiffs present.
None present for defendant.
Ld. Adv. Mr. C.J. Joveson for plaintiffs had taken out
the matter on board by Praecipe on 17/12/2019. I have heard Ld.
Counsel for the plaintiffs on office objections regarding
maintainability of the suit.
2. I have gone through the plaint and accompanying
documents as per list at pg. 23. It consists of a copy of
Notification issued by Honble Bombay High Court dated
29.1.2019 vide Annexure-A and copy of Complaint Case bearing
No. 179/SW/2019 (90/2013). As per para 18 of the plaint, the
plaintiffs are challenging the designation of defendant no.1 as
Senior Advocate and it is stated that, the cause of action for filing
this suit arose on 29.1.2019 when the Notification at Ex.A was
issued by Honble Registrar General, High Court, Bombay.
3. As per prayer clauses (a) and (b), the plaintiffs are
seeking declaration that the defendant no.1 is disqualified and
not eligible to be considered for the designation as Sr. Advocate
and perpetual injunction against defendants no.2 to 5 restraining
them from designating defendant no.1 as Sr. Advocate.
4. Ld. Counsel for the plaintiffs submitted that, the
office has taken various objections as to the maintainability of the
suit, but, in fact, this Court has plenary jurisdiction to entertain
any suit of civil nature and unless the jurisdiction of civil court is
expressly or impliedly barred, it cannot refuse to register a Suit.
5. Ld. Counsel for the plaintiffs submitted that, the
plaintiffs no.1 to 4 are all practising Advocates in the Honble
High Court of Judicature at Bombay and subordinates Courts
thereunder and plaintiff no.5 is a common citizen and stake
holder in the judiciary. Defendant no.1 is also an Advocate
practising in the Honble High Court of Judicature at Bombay and
son of a former Chief Justice. The principal relief is sought
against him is regarding declaration of his status as a Sr.
Advocate. Defendant no.2 is Honble the Chief Justice of High
Court at Bombay and defendant no.3 is Full Court of Honble
High Court of Judicature at Bombay consisting of Honble Judges
of High Court. Defendant no.4 is the Advocate General of the
State and defendant no.5 is the Member of the Permanent
Committee, in terms of the judgment dated 12.10.2017 passed by
the Honble Apex Court in W.P.(C) No. 454 of 2015. All the
defendants are necessary parties for instituting the present Suit.
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6. Ld. Counsel for the plaintiffs submitted that, the
office has raised objections - whether this court has jurisdiction
to entertain the suit and whether the plaint, as framed and filed,
is maintainable. The office has also taken objections that, how
defendants no.2 and 3 can be made party instead of office; details
as to the age of the defendants no.1 to 4; name of defendant no.5
is not stated; there are no averments in the plaint or prayer for
seeking leave u/s. 80(2) of the CPC. There are blank spaces left
in the prayer clause.
7. In the office objections, it is stated that, Section 35 of
Advocates' Act referred to in para 2 of the plaint, it relates to the
State Bar Council for which the relief is already provided u/ss.
36,37,38 and 42 of Advocates' Act. It is submitted by the office
that, Ex.A is issued by the Honble High Court and Section 34 of
the Advocates' Act relates the High Court's power to make rules
under the Act. Therefore, how this court can have jurisdiction. It
is lastly submitted in the objections that, Ex.A is the Notification
issued by Registrar General of Honble High Court and therefore,
this court has no jurisdiction to entertain suit against any
Notification of the Honble Apex Court.
8. After going through the contents of the plaint and
documents filed with the plaint, it is clear that the plaintiffs are
invoking plenary jurisdiction of this court u/s. 9 of CPC and
considering the reliefs sought in the plaint, certain declaration
and injunction is sought by the plaintiffs, which can be
considered as per provisions of Specific Relief Act. However, it
can be gathered from the averments in the plaint that, the
plaintiffs are challenging the action of defendants no.2 to 5
regarding designation of defendant no.1 as Sr. Advocate as per
provisions of law. The office has taken as many as nine objections
regarding maintainability of the suit. Some objections are
technical in nature relating to mistakes/ omissions and blank
spaces left in the plaint etc. However, while considering all the
office objections, I am of the view that, the objections taken by
the office regarding maintainability of the suit on the ground that
the notice u/s.80(2) of CPC is not given and there is no
averments/or/prayer to that effect is one of the material
objections. Similarly, it is indicated in the office objection that as
per provisions of Sec.35 and 36 to 42 that, remedies are provided
to the Advocates in respect of their grievances about misconduct
by Advocate and matters arising out of provisions and
implementation of Advocates' Act. The office has also raised
objection that since the action which is challenged in the suit is
taken by the Authorities of Honble High Court who are
defendants no.2 to 3 and other Authorities who are superior to
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this court. Therefore, the Notification at Ex.A and its
implementation cannot be questioned/challenged before this
court.
9. I find substance in the above objections because the
action which is challenged by the plaintiffs in the present suit is
taken by the Honble High Court on its administrative side and as
per provisions of Art. 12 of the Constitution of India, the High
Court is an Authority and “State” within the meaning of that
definition. Therefore, prior notice and intimation is contemplated
in law.
10. I also find that, the reliefs claimed by the plaintiffs in
the present suit though not expressly barred by any law, the same
are impliedly barred, considering the provisions of Advocates'
Act, 1961. If the plaintiffs have any grievance regarding conduct
of defendant no.1 or actions arising out of and in the
implementation of the provisions of said Act, specific remedies
are provided. Advocates being the class of professionals
themselves, Advocates' Act, which deals with rights and duties as
well as privileges of the Advocates has been enacted as special
law. The provisions of Advocates' Act 1961 and Rules framed
thereunder is a Code in itself. Therefore, if the remedies are
provided under special law, the jurisdiction of civil court under
common law or statutory law is impliedly barred. Defendants no.
2 to 5 are all constitutional authorities and if their actions are to
be challenged, same can be done by the plaintiffs by exhausting
all the available remedies under Special Law. Therefore, I hold
that, the plaint, as framed and filed, is not maintainable on the
ground that, the relief sought by the plaintiffs in this suit are
impliedly barred by the special law. Hence, I proceed to pass
following order : -
ORDER
1. Office objections are upheld to the extent it relate to the
maintainability of the suit and bar of jurisdiction of this court.
2. It is held that, the reliefs claimed by the plaintiffs in the
present suit are impliedly barred by the provisions of Special
Law.
3. The plaint is liable to be rejected under Order 7 Rule
11(d) of CPC and it is rejected accordingly.
4. Office to provide authenticated copy of today's
Roznama to the Ld. Counsel for the plaintiffs for information.
Sheristedar to comply.
Judge
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