IN THE HIGH COURT OF KERALA AT ERNAKULAM
C.N. RAMACHANDRAN NAIR & BABU MATHEW P. JOSEPH, JJ. W.P.(C) No. 1737 of 2012 DATED THIS THE 20th DAY OF JANUARY, 2012 Head Note:- Practice and procedure – Maintainability of a case - there is a general grievance for the Advocates that the Registry without any authority considers maintainability of various cases filed in the court and refuses to number the same. Held, Maintainability is essentially a matter which needs to be considered on the judicial side. For Petitioner:-
O R D E R C.N. Ramachandran Nair, J. 1. This case came up before this Bench yesterday as an unnumbered W.P.(C) with a noting by the Registry that the case is not maintainable as a public interest litigation based on decision of the Honourable Supreme Court in Girjesh Shrivastava v. State of M.P. reported in 2010 (4) KLT Suppl. 130. However, since we felt that maintainability itself needs to be considered by this court on the judicial side, subject to decision on maintainability itself, we ordered numbering of the W.P.(C). Accordingly it is numbered and sent to the Bench today. 2. When the W.P.(C) was taken up for hearing, the President of the Kerala High Court Advocates' Association also appeared and submitted that there is a general grievance for the Advocates that the Registry without any authority considers maintainability of various cases filed in the court and refuses to number the same. According to him, even after request by counsel, Registry even refuses to post the case before the Bench. Government Pleader also endorsed the same view stating that the objection raised by the Registry leads to even delay in posting even after numbering of the case involved. 3. We are of the considered view that maintainability is essentially a matter which needs to be considered on the judicial side. Registry is of course free to consider maintainability and if they do not find any case maintainable, they are free to record the reason and refuse to number the same without orders from the Bench. However, if party or the counsel filing the case requires maintainability to be adjudicated by the court on the judicial side, it is the duty of the Registry to send unnumbered case to the concerned Judge or Bench hearing the matter based on roster fixed by the Chief Justice for consideration of maintainability and for numbering, if ordered by the court. We, therefore, direct the Registry to post all unnumbered cases before the Bench at the request of the counsel, if it is a today moving matter, on the date of filing itself or otherwise, on the date following noting of defect by the Registry. So far as cases otherwise maintainable but filed with defects are concerned, it is for the Registry to grant time for curing defect and such cases also should be posted before the Bench, if defect is not cured or the defect itself is subject matter of contest on which party/counsel wants adjudication by the Bench. Registrar (Judicial) will circulate these instructions to the Filing Section. A copy of this order will be issued to the President of the Kerala High Court Advocates' Association. |
