Case Note & Summary
The appellant, Rukhana Associates, filed a suit for specific performance of an actionable claim and declaration against E-Square Leisure Pvt. Ltd. (formerly Ganatra Hotels Pvt. Ltd.) in the Civil Judge, Senior Division, Pune. The suit was dismissed by the trial court. The appellant challenged the dismissal on the ground that the successor judge, Mr. A. P. Raghuvanshi, pronounced judgment without hearing oral arguments, relying only on the written gist of arguments submitted to the predecessor judge, Mr. Chilbule. The respondent argued that Order XVIII Rule 2(3A) CPC permitted the judge to decide on written arguments. The High Court held that the right to oral hearing is fundamental and cannot be dispensed with by a successor judge who did not hear the arguments. The court set aside the judgment and decree and remanded the suit for fresh hearing, directing the trial court to decide the suit within six months. The court also directed the appellant to pay the deficit court fees within one month.
Headnote
A) Civil Procedure - Right to Oral Hearing - Successor Judge - Order XVIII Rule 2(3A) CPC - The successor judge who did not hear oral arguments cannot dispense with oral hearing merely because written gist of arguments was on record; the provision for written arguments is not a substitute for oral hearing when the judge changes. Held that the impugned judgment is set aside and the suit is restored for fresh hearing (Paras 4-8).
Issue of Consideration
Whether a successor judge, who did not hear oral arguments, can pronounce judgment solely on the basis of written gist of arguments submitted to the predecessor judge, in view of Order XVIII Rule 2(3A) of the Code of Civil Procedure, 1908.
Final Decision
The appeal is allowed. The impugned judgment and decree dated 20th February, 2010 passed by the Civil Judge, Senior Division, Pune, in Special Civil Suit No. 667 of 2004 is set aside. The suit is restored to the file of the trial court for fresh hearing in accordance with law. The trial court shall decide the suit as expeditiously as possible, preferably within six months from the date of receipt of the order. The appellant shall pay the deficit court fees of Rs.1,00,225/- within one month from today.
Law Points
- Right to oral hearing
- Successor judge must hear oral arguments
- Order XVIII Rule 2(3A) CPC not a substitute for oral hearing
- Natural justice
- Fair trial
Case Details
2010 LawText (BOM) (07) 89
First Appeal No. 577 of 2010
A. M. Khanwilkar, A. A. Sayed
Mr. A. Y. Sakhare, Sr. Advocate with Mr. V. P. Sawant & Ms. Usha Rahi i/by M/s. Mayur Narendra & Co. for the Appellant; Mr. Vivek Kantawala with Ms. Sneha Nanandkar i/by M/s. Vivek Kantawala & Co., for the Respondent
E-Square Leisure Pvt. Ltd. (Erstwhile Ganatra Hotels Pvt. Ltd.)
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Nature of Litigation
Civil suit for specific performance of actionable claim and declaration.
Remedy Sought
Appellant sought setting aside of trial court judgment and decree dismissing the suit, and restoration of the suit for fresh hearing with oral arguments.
Filing Reason
The successor judge pronounced judgment without hearing oral arguments, relying only on written gist of arguments submitted to the predecessor judge.
Previous Decisions
The trial court dismissed the suit and directed the plaintiff to pay deficit court fees of Rs.1,00,225/-.
Issues
Whether the successor judge could dispense with oral hearing and pronounce judgment based on written gist of arguments under Order XVIII Rule 2(3A) CPC.
Submissions/Arguments
Appellant: The requirement of oral arguments could not be dispensed with by the newly appointed judge; it was mandatory.
Respondent: Since gist of oral arguments was on record, in view of Order XVIII Rule 2(3A) CPC, it was not necessary for the judge to hear oral arguments again.
Ratio Decidendi
A successor judge who has not heard oral arguments cannot pronounce judgment solely on the basis of written gist of arguments submitted to the predecessor judge. Order XVIII Rule 2(3A) CPC does not dispense with the requirement of oral hearing when the judge changes, as the right to oral hearing is a fundamental principle of natural justice.
Judgment Excerpts
The grievance of the appellant is that the requirement of oral arguments could not have been dispensed with by the newly appointed Judge. That was mandatory.
In our opinion, the view taken by the learned Judge is clearly unsustainable. The right of oral hearing is a valuable right of the parties and cannot be dispensed with by the successor Judge merely because the gist of oral arguments was already on record.
Procedural History
The appellant filed Special Civil Suit No. 667 of 2004 for specific performance. The suit was heard by Judge Mr. Chilbule who recorded evidence and heard oral arguments on 25th January 2010, directing parties to file gist of arguments. Before judgment, Mr. Chilbule was transferred. The successor Judge Mr. A. P. Raghuvanshi, without hearing oral arguments, pronounced judgment on 20th February 2010 dismissing the suit. The appellant filed First Appeal No. 577 of 2010 in the Bombay High Court.
Acts & Sections
- Code of Civil Procedure, 1908: Order XVIII Rule 2(3A)
