Rajni Sehgal Vs. State of J&K and Another
EmailAppeal: Civil Appeal No. 828 of 1997
(Arising out of SLP (C) No. 18348 of 1996)
(Arising out of SLP (C) No. 18348 of 1996)
Petitioner: Rajni Sehgal
Respondent: State of J&K and Another
Apeal: Civil Appeal No. 828 of 1997
(Arising out of SLP (C) No. 18348 of 1996)
(Arising out of SLP (C) No. 18348 of 1996)
Judges: S.C.AGRAWAL & S.SAGHIR AHMAD, JJ.
Date of Judgment: Feb 17, 1997
Head Note:
PRACTICE AND PROCEDURE
Letters Patent Appeal – Stay orders granted by Jammu Bench – Caveat filed at Jammu as well as at Srinagar – Division Bench available at Jammu – LPA filed at Srinagar in violation of orders of Chief Justice in this regard – No notice given to appellant. Held that LPA should not have been entertained at Srinagar. Appeal directed to be transferred to Jammu for disposal. (Paras 6,9)
Letters Patent Appeal – Stay orders granted by Jammu Bench – Caveat filed at Jammu as well as at Srinagar – Division Bench available at Jammu – LPA filed at Srinagar in violation of orders of Chief Justice in this regard – No notice given to appellant. Held that LPA should not have been entertained at Srinagar. Appeal directed to be transferred to Jammu for disposal. (Paras 6,9)
JUDGEMENT:
ORDER
1. Special leave granted.
2. The appellant was posted as Officiating Superintendent, Sub-Jail, Reasi, Jammu. By order dated 11-6-1996, passed by the Addition-al Director General of Prisons and Fire Services, Jammu, the ap-pellant was placed under suspension. She filed a writ petition (SWP No.859 of 1996) in the High Court of Jammu and Kashmir at Jammu. In the said writ petition the learned Single Judge of the High Court passed an order dated 3-7-1996 issuing notice on the writ petition as well as on the stay petition and staying the operation of the order of suspension in the meanwhile. It was directed that the appellant would be allowed to function as Superintendent of Sub-Jail, Reasi by the respondents to the writ petition without any kind of hindrance and shall be paid her salary regularly. A letters patent appeal, being LPA No.101 of 1996, was filed by the respondents against the said order dated 3-7-1996 passed by the learned Single Judge in the High Court at Srinagar on 30-7-1996.The said appeal was taken up on 31-7-1996 on which date the impugned order was passed by a Division Bench where by the appeal was admitted and the operation of the order dated 3-7-1996 passed by the learned Single Judge was stayed. Feeling aggrieved by the said order of the Division Bench of the High Court,the appellant has filed this appeal.
3. Shri R.K. Jain, learned Senior Counsel appearing for the ap-pellant,has urged that the letters patent appeal was wrongly entertained at Srinagar since it related to Jammu and that it could have been entertained only at Jammu.In this connection, Shri Jain has invited our attention to Order No.CJ/SGR/27/93 dated 26-10-1993 passed by the Chief Justice of the High Court of Jammu and Kashmir which reads as under:
“Letters patent appeals directed against judgment/orders delivered/passed at Srinagar Bench shall be filed, heard and decided at the Srinagar Bench. Similarly, such appeals directed against judgment/orders delivered/passed at the Jammu Bench shall be filed,heard and decided at the Jammu Bench.Provided that if it is not practicable to file an appeal pertaining to the particular Bench at that Bench it may be filed at the other Bench with the leave of the Chief Justice or in his absence,of the Senior Judge available at the headquarter.
This order shall take effect from 1st November,1993.”
4. Shri Jain has also pointed out that in the Arrangement of Sitting in the High Court of Jammu and Kashmir at Jammu for the week commencing from 30-7-1996,it was indicated that there would be a Division Bench.The submission is that since Division Bench was available at Jammu,the letters patent appeal should have been filed at Jammu and it could not have been filed at Srinagar.Shri Jain has also submitted that the appellant had filed a caveat at Jammu through a lawyer and since she was apprehending that the letters patent appeal may be filed at Srinagar,she had also sent a caveat through registered post at Srinagar wherein she had given her Jammu address.The submission is that the letters patent appeal was taken up by the High Court at Srinagar on 31-7-1996 without giving any notice to the appellant about the date of hearing.Shri Jain has urged that the Division Bench was in error in passing the impugned order because the letters patent appeal could not be entertained at Srinagar and since the appellant had filed a caveat a notice about the date of hearing should have been given to the appellant which was not done.
5. On behalf of the respondents,it has been urged that at that time there was summer vacation in the High Court and that the order of the Chief Justice dated 29-10-1993 has no application and the letters patent appeal was rightly entertained at Srina-gar.It has also been submitted that the fact that the appellant had filed a caveat at Srinagar shows that she knew that the let-ters patent appeal could be filed at Srinagar and it is not open for the appellant to say that the letters patent appeal was wrongly entertained at Srinagar.
6. Having heard the learned counsel of the parties,we are of the view that the submission of Shri Jain must be accepted.It has been pointed out that on 30-7-1996 when the letters patent appeal was filed the High Court of Jammu and Kashmir was not having the summer vacations.The submission that since the Court was having summer vacation the order dated 26-10-1993 had no application cannot,therefore,be accepted.By the order dated 26-10-1993 the Chief Justice of the High Court had given directions that the letters patent appeals directed against the judgment/orders delivered/passed at Srinagar Bench or Jammu Bench must be filed in the Bench where the judgment or order is passed and that only in exceptional circumstances mentioned in the proviso,viz.,when it is not practicable to file an appeal pertaining to the partic-ular Bench at that Bench,the appeal can be filed in the other Bench with the leave of the Chief Justice or in his absence the Senior Judge available at the headquarters.In the present case,the contingency referred to in the proviso did not arise because the Arrangement of Sitting in the High Court at Jammu for the week commencing from 30-7-1996 shows that a Division Bench was available at Jammu.The respondents could not,therefore,take the benefit of the proviso in the order dated 26-10-1993 and filed the letters patent appeal at Srinagar.
7. Moreover,in the present case the appellant had filed a caveat both at Jammu as well as at Srinagar.Since the caveat at Srinagar was filed by the appellant in person it was necessary that she should have been given a notice about the date of hear-ing of the letters patent appeal before the same could be taken up.Admittedly no such notice was given to the appellant.
8. In the circumstances,we are of the opinion that the Division Bench of the High Court was in error in entertaining the letters patent appeal filed by the respondents at Srinagar and in passing the impugned order dated 31-7-1996 in the said appeal.
9. The appeal is,therefore,allowed,order dated 31-7-1996 passed by the Division Bench of the High Court in Letters Patent Appeal No.101 of 1996 is set aside and it is directed that the letters patent appeal should be transferred to the Jammu Bench of the High Court for consideration and the said Bench shall take up the said letters patent appeal and deal with the same in accordance with law.No order as to costs.
1. Special leave granted.
2. The appellant was posted as Officiating Superintendent, Sub-Jail, Reasi, Jammu. By order dated 11-6-1996, passed by the Addition-al Director General of Prisons and Fire Services, Jammu, the ap-pellant was placed under suspension. She filed a writ petition (SWP No.859 of 1996) in the High Court of Jammu and Kashmir at Jammu. In the said writ petition the learned Single Judge of the High Court passed an order dated 3-7-1996 issuing notice on the writ petition as well as on the stay petition and staying the operation of the order of suspension in the meanwhile. It was directed that the appellant would be allowed to function as Superintendent of Sub-Jail, Reasi by the respondents to the writ petition without any kind of hindrance and shall be paid her salary regularly. A letters patent appeal, being LPA No.101 of 1996, was filed by the respondents against the said order dated 3-7-1996 passed by the learned Single Judge in the High Court at Srinagar on 30-7-1996.The said appeal was taken up on 31-7-1996 on which date the impugned order was passed by a Division Bench where by the appeal was admitted and the operation of the order dated 3-7-1996 passed by the learned Single Judge was stayed. Feeling aggrieved by the said order of the Division Bench of the High Court,the appellant has filed this appeal.
3. Shri R.K. Jain, learned Senior Counsel appearing for the ap-pellant,has urged that the letters patent appeal was wrongly entertained at Srinagar since it related to Jammu and that it could have been entertained only at Jammu.In this connection, Shri Jain has invited our attention to Order No.CJ/SGR/27/93 dated 26-10-1993 passed by the Chief Justice of the High Court of Jammu and Kashmir which reads as under:
“Letters patent appeals directed against judgment/orders delivered/passed at Srinagar Bench shall be filed, heard and decided at the Srinagar Bench. Similarly, such appeals directed against judgment/orders delivered/passed at the Jammu Bench shall be filed,heard and decided at the Jammu Bench.Provided that if it is not practicable to file an appeal pertaining to the particular Bench at that Bench it may be filed at the other Bench with the leave of the Chief Justice or in his absence,of the Senior Judge available at the headquarter.
This order shall take effect from 1st November,1993.”
4. Shri Jain has also pointed out that in the Arrangement of Sitting in the High Court of Jammu and Kashmir at Jammu for the week commencing from 30-7-1996,it was indicated that there would be a Division Bench.The submission is that since Division Bench was available at Jammu,the letters patent appeal should have been filed at Jammu and it could not have been filed at Srinagar.Shri Jain has also submitted that the appellant had filed a caveat at Jammu through a lawyer and since she was apprehending that the letters patent appeal may be filed at Srinagar,she had also sent a caveat through registered post at Srinagar wherein she had given her Jammu address.The submission is that the letters patent appeal was taken up by the High Court at Srinagar on 31-7-1996 without giving any notice to the appellant about the date of hearing.Shri Jain has urged that the Division Bench was in error in passing the impugned order because the letters patent appeal could not be entertained at Srinagar and since the appellant had filed a caveat a notice about the date of hearing should have been given to the appellant which was not done.
5. On behalf of the respondents,it has been urged that at that time there was summer vacation in the High Court and that the order of the Chief Justice dated 29-10-1993 has no application and the letters patent appeal was rightly entertained at Srina-gar.It has also been submitted that the fact that the appellant had filed a caveat at Srinagar shows that she knew that the let-ters patent appeal could be filed at Srinagar and it is not open for the appellant to say that the letters patent appeal was wrongly entertained at Srinagar.
6. Having heard the learned counsel of the parties,we are of the view that the submission of Shri Jain must be accepted.It has been pointed out that on 30-7-1996 when the letters patent appeal was filed the High Court of Jammu and Kashmir was not having the summer vacations.The submission that since the Court was having summer vacation the order dated 26-10-1993 had no application cannot,therefore,be accepted.By the order dated 26-10-1993 the Chief Justice of the High Court had given directions that the letters patent appeals directed against the judgment/orders delivered/passed at Srinagar Bench or Jammu Bench must be filed in the Bench where the judgment or order is passed and that only in exceptional circumstances mentioned in the proviso,viz.,when it is not practicable to file an appeal pertaining to the partic-ular Bench at that Bench,the appeal can be filed in the other Bench with the leave of the Chief Justice or in his absence the Senior Judge available at the headquarters.In the present case,the contingency referred to in the proviso did not arise because the Arrangement of Sitting in the High Court at Jammu for the week commencing from 30-7-1996 shows that a Division Bench was available at Jammu.The respondents could not,therefore,take the benefit of the proviso in the order dated 26-10-1993 and filed the letters patent appeal at Srinagar.
7. Moreover,in the present case the appellant had filed a caveat both at Jammu as well as at Srinagar.Since the caveat at Srinagar was filed by the appellant in person it was necessary that she should have been given a notice about the date of hear-ing of the letters patent appeal before the same could be taken up.Admittedly no such notice was given to the appellant.
8. In the circumstances,we are of the opinion that the Division Bench of the High Court was in error in entertaining the letters patent appeal filed by the respondents at Srinagar and in passing the impugned order dated 31-7-1996 in the said appeal.
9. The appeal is,therefore,allowed,order dated 31-7-1996 passed by the Division Bench of the High Court in Letters Patent Appeal No.101 of 1996 is set aside and it is directed that the letters patent appeal should be transferred to the Jammu Bench of the High Court for consideration and the said Bench shall take up the said letters patent appeal and deal with the same in accordance with law.No order as to costs.
