Registry should list the case as ununmbered

Kerala High Court
P.B.SURESH KUMAR, J.
seaeeanassasssam=sos
Unnumbered Writ Petitions (C) of 2021
(F.Nos.9031715 and 9031706 of 2021)
Dated this the 31t day of August, 2021
ORDER2. When the writ petition corresponds to file
No.9031706 of 2021 was instituted, the Registry entertained a
doubt as to whether a writ petition could be instituted seeking
relief aforesaid against the Chief Justice of this Court, and the
counsel for the petitioner was required to clarify the position. In
response to the said query of the Registry, the learmed counsel
for the petitioner clarified that a writ petition couid certainiy be
instituted against the Chief Justice of this Court. The Registry,
thereupon, sought a further clarification from the counsel for
the petitioner as to whether the stand taken by him is correct,
in the light of the decision of the High Court of Calcutta in AIR
1961 Calcutta 545 and the decision of the Apex Court in Civil
Appeal No.485 of 1963. The counsel for the petitioner took
exception to the said query pointing out that the Registry is not
authorised to seek such clarification, for it is a pure question of
law to be decided on the judicial side. Identical clarifications
were sought by the Registry from the counsel for the petitioner
Signature yalid
JUSTICE P B sURE kUMAR
31.08.2021 17:3
Unnumbered Writ Petitions (C) of 2021
(F.Nos.9031715 and 9031706 of 2021) 3
in the writ petition corresponds to file No.9031715 of 2021 also,
and identical stand was taken by the counsel for the petitioner
in the said case as well.
3. Since the Registry was not impressed by the
stand taken by the counsel for the petitioner, as required by the
counsel for the petitioner, the matters were placed before the
Court for appropriate orders
4. When tihe matters were taken up, the learned
counsel for the petitioner pointed out that though the Registry
was justified in entertaining a doubt as to whether the writ
petitions of the instant nature are maintainable, when the
counsel for the petitioner clarified the doubt of the Registry
the affirmative, the matters should have been numbered and
placed before the Court for decislon as to the sustainability of
the doubt entertained by the Registry on the judicial side.
According to the learned counsel, it was highly improper for the
Registry to conduct a further probe into the issue and seek
Signature valid
JUSTICE P B sURE UMAR
31.08.2021 17:
Unnumbered Writ Petitions (C) of 2021
(F.Nos.9031715 and 9031706 of 2021) 4
further clarification in the matter, for, by such conduct, the
Registry has entered the domain of judicial function. It was
pointed out by the learned counsel that the practice of this
nature is one that was deprecated by the Division Bench of
this Court in Ayub Khan P.A. v. State of Kerala and
Another, 2012 (1) KHC 615, and the Apex Courtin Surendran
P.v. State by Inspector of Police, 2019 (3) KHC 102.
5. When this Court required the learned counsel
for the petitioner to make his siubmissions as to the
sustainability of the doubt entertained by the Registry, after
assuring the counsel that his objections against the conduct of
the Registry would be considered, the stand taken by the
learned counsel was that it is improper for this Court to require
the counsel to address the court on the issue relating to the
sustainability of the doubt entertained by the Registry before
numbering the writ petition, for the same would legitimise the
alleged improper conduct of the Registry. When this Court took
Signature yalid JUSTICE P BSURP UMAR
31.08.2021 17:3
Unnumbered Writ Petitions (C) of 2021
(FNos.9031715 and 9031706 of 2021) 5
the stand that there may not be any impropriety in hearing the
counsel on the sustainability of the doubt raised by the Registry
in an unnumbered matter, the counsel for the petitioner made
submissions on the issue relating to the sustainability of the
doubt raised by the Registry after taking strong exception top
the view taken by the Court.
6. As regards the issue relating to the
sustainability of the doubt raised by the Registry, the learned
counsel for the petitioner pointed out that a writ petition is
certainly maintainable against the Chief Justice of this Court
and also against the Chief Justice of india in relation to their
administrative functions, and writ petitions are being
entertained by High Courts and the Apex Court in such matters.
It was also pointed out by the learned counsel that in terms of
the In-House Procedure prescribed to deal with the complaints
against Judges, it is for the Chief Justice of this Court and also
the Chief Justice of India to take appropriate actions and they
Signature yalid JUSTICE P B SUREUMAR
31.08,2021 17:
Unnumbered Writ Petitions (C) of 2021
(F.Nos.9031715 and 9031706 of 2021) 6
are therefore, necessary parties to the writ petitions.
7. In Ayub Khan P.A., it was held by this Court
that maintainability is essentially a matter which needs to be
addressed by the Court on the judicial side, while clarifying that
the Registry is free to consider the maintainability of the matter.
It was clarified in the said case that if it is found by the Registry
that the case is not maintainable, it is free to record the reason
for the same and refuse to number the matter and if the party
or counsel filing the case requires maintainability to be
adjudicated by the Court on judicial side, the Registry has to
place the unnumbered matter to the concerned Judge or Bench
for consideration of maintainability, and for numbering, if
ordered by the Judge or Bench. The learned counsel for the
petitioner does not dispute the said proposition. As such, the
stand taken by the learned counsel for the petitioner that the
issue relating to the sustainability of the doubt raised by the
Registry cannot be decided by this court on the judicial side
Signature valid SUSTICE P BSUREUMAR
31.08.2021 17:3
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(F.Nos.9031715 and 9031706 of 2021) 7
without numbering the matter is not one accepted by this court
even in Ayub Khan P.A. relied on by the learned counsel
himself. In other words, the Registry cannot be found fault with
for having placed the matter before the court to decide the
issue relating to the sustainability of the doubt without
numbering the writ petition. It is all the more so since the
numbering of the writ petition being ptireiy an administrative
function, the authority of the court in addressing an issue
relating to the sustainability of the doubt raised by the Registry
on judicial side cannot be dependent on the numbering of the
matter. Similarly, the stand that once a query raised by the
Registry on an issue is answered by the counsel, the conduct of
the Registry in raising further queries on the same issue based
on the decisions of the court would amount to judicial function
cannot also be accepted, for if the issue raised is covered by a
decision of the court, the Registry cannot be blamed for
bringing the decision on the issue to the notice of the counsel.
Signature yelid
JUSTICEP BbUR UMAK
31 0h 202 1 175.
Unnumbered Writ Petitions (C) of 2021
(F.Nos.9031715 and 9031706 of 2021) 8
Of course, this will not stand in the way of the party or counsel
requiring the matter to be placed before the Judge or Bench
concerned for a decision on the issue on judicial side and in
that event, the Registry will have no option but to place the
matter before the Judge or Bench concerned for decision on the
issue on judicial side.
8. Surendran P. relied on by the learned counsel
for the petitioner is a case where the Apex Court considered the
question whether the conduct of the Registry of the Madras
High Court in refusing to number an application for Anticipatory
Bail and not placing it before the appropriate Bench for a
decision on the question of maintainability was correct. The said
decision may not be of any relevance in the context of the
present case, for the Registry has placed the matter before the
court fora decision on judicial side on the issue relating to the
sustainability of the doubt raised by it as to the maintainability
of the writ petition against the Chief Justice.