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TMI Blog2008 (7) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... he remedy for the review petitioner is either to challenge the order under review before the Supreme Court or move a motion before the Hon'ble Chief Justice of this Court for direction to place the review petition before Hon'ble Judge who had heard the matter and at the relevant time had his Headquarter at Aurangabad. Hence directed that the matter be removed from his Board. 3. The matter thereafter was placed before the another learned Judge who by his order dated 19.3.2008 noted Chapter 30 Rule 3 of the High Court Appellate Side Rules, and held that Review Petition need not be placed before the same learned Judge, if the concerned Judge is not available at the particular Bench The learned Judge also noted that as the concerned learned Judge has since demitted office, the same will have to be heard by a Judge taking up the concerned appeals. However, in view of the earlier order passed by another Coordinate Bench, the learned Judge thought it appropriate that the matter be placed before the learned Chief Justice for consideration of the issues which we have referred to earlier. 4. This matter was ordinarily fixed for hearing on 9th July, 2008. However, considering the Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad disposed of the Appeal. In our opinion, on this single aspect itself, the reference ordinarily ought to have been answered and the matter be directed to be heard by another learned Single Judge. 6. However, considering that there are two issues referred to us in order to avoid further litigation, we propose to answer the two questions referred for our consideration. 7. Chapter 30 Rule 3 of the Appellate Side Rules reads as under: "3.(1) An application for review or for amendment of an order or a decree, for speaking to the minutes passed by a Single Judge of this Court shall be placed before that Judge, provided, however, where such Judge has ceased to be the Judge of the High Court or has ceased to sit at the particular Bench, such application shall be placed before the regular Court of the Single Judge, dealing with the category of matters to which the proceedings relates-as for example- (a) Writ Petition, if the original order had been passed in a Writ Petition; (b) First Appeals, if the original order had been passed in any other Civil matters; (c) Criminal Appeals, if the original order had been passed in any criminal matters: Provided that, where the Singl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same: Provided that if in the case of decree order passed by Division Bench of two or more Judges of the High Court sitting at any place in the State of Maharashtra, all the said Judges are not available, for sitting together at one place when the review application is ready for hearing the application may be heard by a Division Bench of two or more Judges, at least one of whom, if available, should be the Judge who had passed the decree or order, a review of which applied for." Referring to this rule, the learned Counsel sought to contend that it is the same Judge who ought to have heard the matter. In our opinion, this would not be proper construction of the rule. The rule firstly contemplates that the Judge must continue to be attached to the Court. In other words, he must not cease to be a Judge. Further he ought to be not precluded by absence or other cause for a period of two months next after the application, from considering the decree or order to which the application refers. Only in such a case will the same Judge hear the matter. Otherwise considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Chief Justice observed that there is no reason why, if a Judge on the Original Side is armed with that power, the Judge sitting in appeal in the High Court should not have similar power, though it is a different matter that power is to be exercised sparingly and with caution. 10. The appellate side rules are in conformity with provisions of Order 47 Rule 5 of the Code. These rules are not under challenge before us and even if Order 47 Rule 5 as amended by this Court, has to be held inapplicable on the Appellate Side, the judgment in Kripalani would be an answer. As noted earlier, also Chapter XXX Rule 13 is not under challenge before us. Therefore' as long as the rule subsists, it is these rules which govern the procedure for hearing of review petitions when the Judge who had passed the order has demitted office or is not available at the Bench where the order has been passed. Procedure is a handmaid of justice. Provisions pertaining to procedure have to be read to further the cause of justice. Any interpretation, which will defeat this object, will have to be rejected unless the express language of the provisions leaves no room for any other interpretation. 11. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X
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