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Judgment
The plaintiff, who is the unsuccessful before the two courts below is the appellant in this second appeal. Heard Ms. Chitra Sampath, for Mr.
T.R. Rajaraman, learned counsel appearing for the appellant and Mr. N.V. Venkataseshan, learned counsel appearing for the respondents.
In the nature of disposal which this Court, in exercise of its inherent jurisdiction proposes to pass, it is not necessary to se( out the details of
pleadings relating to the case and counter case of the parties. For convenience, the parties will be referred as arrayed before the trial court.
The plaintiff instituted the suit in O.S.No.90 of 1981 on the file of sub court, Tenkasi, seeking the relief of specific performance against the
defendants. Concedingly there is no written agreement between the plaintiff and the first defendant, who is the owner. The plaintiff had based her
claim based upon the correspondence exchanged between the plaintiff and the first defendant as well as her claim that she had paid substantial
amount of Rs.19,000 out of Rs.24,500 towards the sale consideration and that she is entitled for specific performance. Per contra, the contesting
first defendant, the owner, had denied such an agreement and pleaded that she had neither agreed to sell the suit property to the plaintiff and that
ihe payment, if any, made by the plaintiff is towards the income from her estate to which the plaintiff had been entrusted as her agent and not as
part of sale consideration.
The trial court framed as many a nine issues. The plaintiff marked Exs.A-1 to A-21 and examined herself as P.W.I, while the defendants
marked Exs.B-1 and B-2. The first defendant examined herself as D.W.I. The trial court, after consideration of oral and documentary evidence
recorded a finding against the plaintiff in respect of all the issues and dismissed the suit holding that the plaintiff had not established the alleged
agreement of sale and that the plaintiff is not entitled to claim specific performance.
Being aggrieved, the plaintiff preferred A.S.No.40 of 1988 on the file of the 1st Additional District Court, Tirunelveli. The first appeliate court,
after framing seven points for consideration, ultimately by its judgment and decree dated 9.8.89 confirmed the judgment and decree of the trial
court. Being aggrieved by the said judgment and decree of the first appellate court dated 9.8.89, the present second appeal has been preferred.
At the time of admission, the following three substantial questions of law were framed by this Court:-
(1) Whether the learned District Judge was right in dismissing the suit when D.W.I had clearly admitted the agreement to sell as found in Ex.A-1
on the ground that the plaintiff had not proved the existence of the agreement?
(2) Whether the learned District Judge grossly erred in holding that the defendant was only a sharer inspite of the clear recitals in Ex.A.21 about
her absolute rights to the suit property?
(3) Whether the learned District Judge was correct in dismissing I. A.No.7 of 1988 filed under Order 41, Rule 27, C.P.C.?
Apart from the above substantial questions of law framed at the time of admission, Ms.Chitra Sampath, learned counsel for the appellant raised
a substantial question which goes to the root of the first appellate court judgment and according to the learned counsel, the judgment of the first
appellate court being biased is a nullity and, therefore, the matter has to be remitted back at the first appellate court for de nova consideration. The
learned counsel raised the additional question of law and argued the following substantial question of law at the hearing:-
Whether the lower appellate court is biased? Whether the judgment of the first appellate court is vitiated by bias and is a nullity? Whether the
ground of bias is made out? Whether the appeal has to be remitted be set aside and the matter has to be remitted back to the first appellate court?
Per contra, Mr.Venkataseshan, learned counsel for the respondent contended that assuming there is bias. It is not necessary to remand the
matter to the first appellate court as this Court could examine and merits of the case by going through the pleadings, oral as well as documentary
evidence as has been provided u/s 103 of the CPC by eschewing the judgment of the first appellate court. Mr. Venkataseshan, further submitted
that if the judgment of the first appellate court is set aside on the ground of bias and remitted back, the respondents will be subjected to further
prejudice and subjected to further prolonged litigation which will result in injustice.
Though Ms. Chitra Sampath submitted her arguments on merits, she had been insisting and harping upon heavily on the substantial question of
law raised at the hearing of this appeal. To answer the substantial question of law framed at the hearing certain broad facts have to be set out.
The first appeal was disposed of by the learned first Additional District, Tiruneiveli, Thiru.A. Alagusundaram, District Judge was the Presiding
Officer of the first Additional District Court who had decided the first appeal A.S.No.40 of 1988. The learned counsel for the appellant referred to
the judgment of the Division Bench of this court in Alagusundaram v. Slate of Tamil Nadu and others, 2000 (2) MLJ 179 and her reliance was
verbose, besides there is substance which requires consideration.
As seen from the judgment of the Division Bench in Alagusundaram v. State of Tamil Nadu, 2000 (2) MLJ 179 the said District Judge was
proceeded departmentally by the High Court. The High Court framed two charges against the said District Judge and the first charge against the
said District Judge relates to the judgment in the appeal in A.S.No.40 of 1988, which is the subject matter of challenge in this second appeal. The
first charge framed reads thus:-
Charge No.l: That you, while you were working as 1 Additional; District Judge at Tiruneiveli, you called the appellant, Tmt.Kunjamma in
A.S.No.40 of 1988 which was pending on your file through your agent Thiru Velusamy Pandian to your house and demanded a bribe of Rs.
15,000 for rendering a favourable judgment and that as she did not pay the demanded bribe you dismissed the appeal and thereby you are guilty of
grave misconduct, corrupt practice, a conduct unbecoming of a Judge and willful contravention of Rule 20 of Government Servants Conduct
Rules.
In respect of the above charge and one another charge, the full court appointed a committee of two Judges to conduct departmental enquiry.
The Enquiring Judges reported a finding that the said Presiding Officer is guilty of both the charges levelled against him. On the basis of the report
submitted by the two Enquiring Judges, after following the procedure prescribed in this respect, and after consideration of the further objections
and statements, the full Court recommended to approve the finding of the Enquiring Judges and imposed the penalty of dismissal from service in its
meeting held on 26.8.1996. The decision of the Full Court was communicated to the Government for issuing necessary orders. Thereafter, the
State Government issued orders dismissing the said Presiding Officer from service.
Challenging the said dismissal, the said Presiding Officer moved this Court under Article 226 of the Constitution by filing W.P.No.9768 of
1997. The said writ petition was considered by a Division Bench of this Court.
The Division Bench of this Court, while holding that the findings of facts recorded at the domestic enquiry are not liable to be interfered and
holding that a judicial officer has to maintain absolute integrity and honesty while discharging his official duties and inasmuch as the charges levelled
against the said Presiding Officer relate to corruption and corrupt practice which are very serious in nature, held that the punishment imposed on
the said Presiding Officer is commensurate with the gravity of the proved misconduct. In that view, the Division Bench dismissed the writ petition.
The learned counsel for the appellant pointed out that one of the charges based upon which the said presiding Officer had been found guilty of
corrupt practice relates to the judgment rendered in A.S.No.40 of 1988. This is clear from the charge referred to above. In this respect, it may not
be necessary to refer to any other finding except to refer to the reported judgment of the Division Bench, as it has a bearing on the present case.
The Division Bench on charge No.l held thus:-
It is seen from the enquiry proceedings that no order to prove charge No.1 the Presenting Officer examined one witness and marked 3
documents. The complainant Kunjamma alias Eliamma who is a resident of Shencottah and Homeopathy Practitioner was examined as P.W.I. In
her evidence, she stated that she entered into a sale agreement for the purchase of a property comprising of houses and vacant site situated on the
back side of Shencottah Municipal Bus stop with one Mariamma Iype in the month of June, 1980 and she paid a sum of Rs.21,000 towards sale
consideration. The said Mariamma Iype did not execute the sale deed even after a period of one year. Hence she filed a suit for specific
performance in O.S.No.90 of 1981 on the filed of the subordinate Judge, Tenkasi. The said suit was dismissed in the year 1988 and she had
preferred an appeal in A.S.No.40 of 1988 on the file of the District Judge, Tiruneiveli. The said case was transferred to I Additional District Court,
Tirunelveli and the petitioner herein was the Presiding Officer of that Court. According to her, the petitioner sent word through one Velusamy
Pandian directing her to meet him and she personally went to the residence of the petitioner in State Bank Officer''s Colony at Maharaja Nagar
and met him. She further deposed that the petitioner demanded a bribe of Rs, 15,000 for rendering a favorable judgment in her appeal, that he sent
his agent A. Velusamy Pandian, frequently, that she met the petitioner and pleaded with him about her inability to pay the bribe and that the
petitioner finally delivered the judgment dismissing the appeal. She once again went to his residence and wept before him for having dismissed the
appeal for non-payment of bribe amount and the petitioner consoled her and promised to bear the expenses for preparing a second appeal. Ex.P.I
is the complaint sent by P.W.I to the Additional Superintendent of Police of the Vigilance Cell. Ex.P.2 is the statement given by her before the
Special Officer and Ex.P.3 is the certified copy of the judgment in A.S.No.40 of 1988. After carefully analysing her evidence, the Hon''ble
Enquiring Judges, in Para, 7 of their report have observed thus:-
We have elaborately advened to the evidence of P.W. 1 only to show that it is absolutely natural and she had not suppressed any incident which
had happened throughout the period pendency of the appeal.
Again, at the end of paragraph 8, they observed thus:-
We have already noticed that P.W.I has given evidence in a very natural way and the sequence of the events narrated by her clearly suggests that
she is speaking the truth. We have absolutely no doubt in our mind that her evidence has to be accepted and the delinquent officer is consequently
found guilty of the first charge of demanding a bribe of Rs.15,000 for rendering a favourable judgment in A.S.No.40 of 1988. He has clearly
violated Rule 20 of the Government Servants Conduct Rules.
Even though it is stated that with .regard to charge No. 1 the complaint was made by one of the aggrieved persons and the same cannot be lightly
accepted, after going through her statement in the initial complaint, statement before the Special Officer, Vigilance Cell and before the Enquiring
Judges as P.W.I, we are satisfied that there is no acceptable reason to reject her testimony. On the other hand, the evidence of P.W.I is natural,
cogent, truth-worthy, and it deserves acceptance.
Hence, it is clear that the Presiding Officer had made a demand from the appellant herein and demanded a bribe of Rs.15,000 from the
appellant herein for rendering a favorable judgment in her appeal. It is the evidence of the appellant in the said disciplinary proceedings that she had
met the Presiding Officer more than once, she had expressed her difficulty and her inability to pay the bribe as demanded for rendering a favorable
judgment. It is being highlighted and persistently too by the learned counsel for the appellant that the failure to meet the demand of illegal
gratification had resulted in the judgment of the trial court being confirmed by the Presiding Officer and, therefore, it is clear that the judgment of the
first appellate court is biased and is a nullity.
Though this Court may not be justified in accepting the entirety of the submissions made by the learned counsel for the appellant, it may not be
justifiably proper for this court to brush aside the said contention as devoid of consideration. As already pointed out in para 10 of the judgment, the
Division Bench referred to the very same appeal and found that the very Presiding Officer is guilty of demand of bribe from the very appellant
herein. This finding of the Division Bench is being pressed into service in support of the plea that there is bias and such bias is made out as seen
from the judgment of the Division Bench of this Court. By referring to the Division Bench judgment in detail, the learned counsel contended that the
judgment in the first appeal has to be set aside and the matter has to be remitted back to the first appellate court for de novo proceedings.
The learned counsel for the appellant insisted that justice should be seen to be done and the bias on the part of the Presiding Officer who had
delivered the judgment in the first appeal had rendered the judgment illegal and being a nullity, the matter deserves to be remanded.
However, this Court persuaded the counsel for the appellant to argue the matter by eschewing the judgment of the first appellate court, which
the learned counsel for the appellant, though advance arguments, resisted such a move as according to the learned counsel for the appellant, it
would result in deprivation of one more chance to the appellant as any decision in this second appeal on merits, as if it is hearing a regular first
appeal, will result in deprivation of an opportunity to the appellant. There is substance in such a plea.
Eschewing the judgment of the first appellate court, even if this Court goes into the pleadings, oral as well as documentary evidence as if it is a
first appellate court, yet it is a judgment in the second appeal only and the appellant will be deprived of an opportunity to agitate. In other words,
an opportunity is lost by adopting such a course. On the other hand, if the matter is remitted back to the first appellate Court and if the first
appellate court decides the matter one way or the other, the appellant will have an opportunity of second appeal, so also the respondent herein, in
case the appeal is decided in favour of the appellant in this appeal and against the respondent herein. There is considerable force and merit in this
submission.
Therefore, it is essential to examine as to what would be the effect of the judgment rendered by the said Presiding Officer in the first appeal
which is the subject matter of the present second appeal and in the light of the judgment of the Division Bench which held that the Presiding Officer
is guilty of failing to maintain absolute integrity and honesty, while discharging his functions as a District Judge, and had demanded money from the
appellant. In this context, the two questions that loom large here are:-
(1) Whether the judgment is biased and there is any reasonable basis lo hold that the judgment is biased? Whether such a biased judgment is a
nullity?
(2) Whether the judgment of the first appellate court consequently is liable to be interfered and the matter has to be remitted back?
It is well settled and it is of fundamental importance that justice should not only be done, but should manifestly an undoubtedly be seen to be
done. The Presiding Officer concerned did not have a pecuniary bias in the appeal which he had decided. But the bias of the Presiding Officer on
the facts has been made out as has been held by the Division Bench, and the material portion of the judgment of the Division Bench has already
been extracted supra. This Court is bound by the pronouncement of the Division Bench which had accepted the findings reported in the
disciplinary proceedings and had affirmed the said findings. No other material is required to prove the bias on the part of the said Presiding Officer,
who decided the appeal. In the light of the said findings of the Division Bench, it is too difficult or hard to hold that there is mere possibility alone
and there was no bias at all.
Judicial bias, it is also permissible in law to examine whether the judicial officer was biased and it could even be inferred from the manner in
which a Judge or a Presiding Officer of a Tribunal who discharges his judicial or quasi-judicial functions conducts the proceedings.
In this case it is not as if the appellant complains of denial of fair hearing, but on the other hand had made a specific complaint of demand for
payment or bribe to render a favourable judgment, which complaint had already been sustained by the Division Bench of this Court. Hence, this
Court cannot and will not be justified in examining the truth of otherwise of the said complaint once over. Yet, this is a case where bias has been
made out by the appellant and it is not necessary to refer to any other material.
In a recent pronouncement in State of West Bengal and Others Vs. Shivananda Pathak and Others, , the Apex Court examined the scope of
bias and in that context,. S. Saghir Ahmad, J., speaking for the Bench held thus:-
All judicial functionaries have necessarily to have an unflinching character to decide a case with an unbiased mind. Judicial proceedings are
held in open court to ensure transparency. Access to judicial record by way of inspection by the litigant of his lawyer and the facility of providing
certified copies of that record are factors which not only ensure transparency but also instil and inspire confidence in the impartiality of the court
proceedings.
24 *****
Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so
much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders
the judge unable to exercise impartiality in a particular case.
Bias has many forms. It may be pecuniary bias, personal bias, bias as to subject-matter in dispute, or policy bias etc. In the instance case, we
are not concerned with any of these forms of bias. We have to deal, as we shall presently see, a new form of bias, namely, bias on account of
judicial obstinacy.
In Manak Lal Vs. Dr. Prem Chand, , while applying the principle of ""nemo debet esse judex in causa propria sua"", Gagendragadkar, J., held
thus :-
4....... It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi- judicial proceedings must be able to
judicially, and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and
without any bias. In such cases the test is not whether in fact a bias has affected the judgment, the test always is and must be whether a litigant
could reasonably apprehend that a bias attributable to a member of the tribunal might have operafed against him in the final decision of the tribunal.
It is in this sense that it is often said that justice must not only be done but must also appear to be done. As Viscount Cave. L.C. has observed in
Frome United Breweries Co. v. Bath Justices, 1926 A.C. 586(A):
This rule has been asserted, not only in the case of Courts of Justice and other judicial tribunals but in the case of authorities which though in no
sense to be called Courts, have to act as judges of the rights of others.
In dealing with cases of bias attributed to members constituting tribunals, it is necessary to make a distinction between pecuniary interest and
prejudice so attributed. It is obvious that pecuniary interest, however small it may be in a subject matter of the proceedings, would wholly
disqualify a member from acting as a judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes
necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of
the litigant or the public at large a reasonable doubl about the fairness of the administration of justice. It would always be question of fact to be
decided in each case. ""The principle"", says Halsbury, ""nemo debet esse judex in causa propria sua precludes a justice who is interested in the
subject-matter of a dispute, from acting as a justice therein. ""(Halsbury''s Laws of England, Vol.XXI, p.535, para 952). In our opinion, there is
and can be no doubt about the validity of this principle and we are prepared to assume thai this principle applies not only to the justices as mention
by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties.
In International Airport Authority of India v. K.D. Ball and another AIR 1988 SC 1899, the Apex Court emphasized that there must be purity
in the administration of justice as well as in administration of quasi-judicial justice and held that the apprehension, if any must be judge from a
healthy, reasonable and average point of view and not on mere apprehensions of any whimsical person, in that context, Sabyasachi Mukharji, J.
speaking for the Bench, held thus:-
The purity of administration requires that the party to the proceedings should not have apprehension that the authority is biased and is likely to
decide against the party. But we agree with the learned judge of the High Court that it is equally true that it is not every suspicion felt by a party
which must lead to the conclusion that the authority hearing the proceedings is biased. The apprehension must be judged from a healthy, reasonable
and average point of view and not on mere apprehension of any whimsical person.
In Jiwan Kumar Lohia and another Vs. Durgadutt Lohia and others, , though the proceedings arose under the Arbitration Act, the principle laid
down by the Apex Court which is apposite could very well be applied to the facts of this case. S.C. Agarwal, J., speaking for the Bench, held
thus:-
5 ...... With regard to bias in relation to a judicial tribunal the test that is applied is not whether in fact a bias has affected the judgment but whether
a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the
Manak Lal Vs. Dr. Prem Chand, : In Ranjit Thakur Vs. Union of India (UOI) and Others, , this Court has laid down that ""the test of likelihood of
bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely"" and whether the person
concerned ""was likely to be disposed to decide the matter only in a particular way.
It is not necessary to multiply the decisions and it would be sufficient to refer to the decisions of the Apex Court in R. Viswanathan Vs. Rukn-
Ul-Mulk Syed Abdul Wajid, , and Mineral Development Ltd. Vs. The State of Bihar and Another, , where the principle of bias has been invoked
with respect to a judge of the civil court and the effect of such bias had been considered elaborately.
In Nirankar Nath Wahi and Others Vs. Fifth Additional District Judge, Moradabad and Others, , their Lordships of the Apex Court, in a case
where a litigant pitted against a leading member of the Bar and when he wanted time to engage a counsel of his choice and confidence and when
such a request had been turned down by the District Judge, after declining such an opportunity, in the said case the District Judge who was armed
with a ready made judgment dismissed the appeal without further arguments on behalf of the appellant were yet to be heard. In that context, their
Lordships held that the judgment rendered by the learned District Judge is vitiated by reason of the failure to grant reasonable opportunity of
hearing to the appellant and by reason of the procedure adopted in connection with the preparation and pronouncement of the judgment.
While hold that there should be a fair opportunity of hearing, a litigant should be shown that justice must also appear to have been done by the
Presiding Officer and when the litigant is labouring under a psychological complex, the judgment rendered is vitiated and in that context the entire
judgment has been set aside and remitted back to the District Court to hear the appeal after affording reasonable opportunity of hearing.
Their Lordships have emphasised the necessity of creating confidence in a litigant and also it should be seen that the litigant is sure that in his
case justice is seen to be rendered.
In Muniyallappa Vs. B.M. Krishnamurthy and others, , while reversing the judgment of the Karnataka High Court. Their Lordships of the
Apex Court pointed out that the High Court having come to the conclusion that the procedure adopted by the Tribunal was not in accordance with
the rules of natural justice, it ought to have remitted the matter to Tribunal for fresh disposal. The emphasis being violation of principles of natural
justice, which requires the matter to be remanded to the authority where such an illegality or irregularity had crept in.
In Vassiliades v. Vassiliades, AIR 1945 PC 38, it has been held that a judgment which is the result of bias or want of impartiality is a nullity
and the trial coram ""non-judice"". It has been emphasised that the essence of a judgment that is made after due observance of judicial process, the
Presiding Officer should at least follow the minimal requirement of natural justice and should also show that the forum is composed of impartial
persons acting fairly and without bias and in good faith. In that context, Their Lordships held thus:-
It is always highly desirable that any proceedings should be dealt with by persons who are above any suspicion, however unreasonable of being
biased. But as the proceedings have been in fact held, they cannot be set aside except on legal proof of bias, of which there is none. The other
matters of objection are fully dealt with an rejected by the Supreme Court, who have thus summed up their conclusion:
On the whole we cannot think the proceedings were satisfactory, but all the difficulties appeal to have arisen from the peculiar conduct of the
appellant and her different advocates. And if she feels aggrieved it appears to us the fault was hers and that of her brother and lawyer Afxentis
Vassilades, that the case did not more on more smoothly. And as grounds of appeal we do not think we can consider them as such, considering
the whole behaviour of her and her legal advisers.
Broadly, their Lordships take the same view. It is a matter of public policy that justice should not merely be done but should appear to be done.
Judges, however, are only human, and their patience is sometimes sorely tried by counsel and litigants.
On the facts of the present case that test in terms of real danger rather than real likelihood to ensure that the Court is thinking in terms of
possibility rather than probability of bias. Accordingly having ascertained the relevant circumstances namely the findings by the Division Bench in
the disciplinary proceedings this Court has to ask itself whether there was a real danger of bias on the part of the Presiding Officer in question, in
the sense that he might unfairly regarded with favour or disfavour the case of a party to the issue under consideration by him. The bias is not only
real likelihood of a bias in this case, but it is a real danger of bias which necessitates this court to interfere, set aside the judgment and remit the
matter back to the first appellate Court for de novo consideration.
One more angle to be pointed out is the mind of the party before the Presiding Officer rather than the approach by higher authorities of court.
A to the test of likelihood of bias, what is relevant is the reasonableness of the apprehension in that regard in the mind of the litigant, which mind of
the litigant should be cleared and it should have not only faith in the system but also should be shown that his cause has been decided without
favouritism and justice is rendered impartially. It is well settled and it is very often repeated that there must be purity in the administration of justice
as well as in the administration of quasi justice as they are invoked in the adjudicator process. On the facts, it cannot be stated that the bias or
suspicion is a mere mirage, but, it is, on fact has been made out.
Bias in my opinion, is a departure from the standard of even handed justice which the law requires for those who occupy judicial office. The
reason for such an approach is the adjudication as between two or more parties, the adjudicator must come to his adjudication with an
independent mind, without any inclination or bias towards one side or other in the dispute.
On facts, it is also clear that it is not a case of mere suspicion, but there is reasonable apprehension of bias, which apprehension is fortified by
the subsequent findings of the Division Bench arising out of the disciplinary proceedings. It is not a case of waiver, but it is demonstrably a case of
bias and therefore it is essential that the matter should be remitted back, though such remission may result in further delay.
In the light of the above pronouncements, this Court is of the considered view that the judgment of the learned first appellate Court which is
vitiated by bias, is a nullity as has been contended by Ms. Chitra Sampath, the learned counsel appearing for the appellant.
The next point that arises for consideration is, whether this Court would be justified in remanding the matter to the first appellate court for de
novo consideration. It may be that the present case will not strictly fall under Order 41, Rules 23 to 25 and 27 or u/s 107 of the Code of Civil
Procedure, but that would not disable that Curt from remanding the matter in exercise of its inherent powers, if the facts of the case warrants and if
it deems fit.
It is well settled that the Court has inherent power to remand, further this Court cannot repose on inherent powers if the case falls under any
one or more of the express provisions under the Code. The present case, as already pointed out, will not fall under Rules 24 to 27 of Order 41.
Therefore, if at all this Court has to exercise its inherent power to remand to render substantial justice.
In Mahendra Manilal Namavati v. Sushila Mahendra Namavati, AIR 1965 SC 363, the Apex Court held that in view of the express provisions
of Order 41, Rule 23 to 25 and 27, the High Court could not have recourse of inherent powers as it is the settled legal position that inherent
powers could be availed of ex debit justitiae only in the absence of express provision under the Act. On a consideration of Rules 23 to 25 and 27
of Order 41, as the present case will not fall under any one of the category and, hence, this court has to exercise its inherent power to remand the
matter in the interest of justice.
Since the judgment of the learned appellate Judge is not a judgment in the eye of law and it stands vitiated by bias, instead of this court
deciding the matter on the evidence recorded by the trial court, it would be fit and proper to remand the matter to the first appellate court for fresh
disposal and within a time frame.
This appeal has been delayed in view of the disciplinary proceedings initiated against the Presiding Officer and it came to be disposed of only
recently. In fact, the entire records have been called for by the High Court in its Administrative side for the purpose of the disciplinary proceedings
which had culminated in dismissal of the said Presiding Officer. Hence, there is a delay in the disposal of the second appeal itself. Now that the
proceedings against the said Presiding Officer had reached finality insofar as this court is concerned, the records were called for and the second
appeal was taken up for final disposal. Hence, neither the appellant nor the respondent could be blamed for the delay even though the second
appeal of the year 1989 have already been disposed of. To meet the ends of justice, this Court has to exercise its power of remand. This court is
also conscious of the fact that the remand should not, generally speaking, be ordered, but in the present case, the defect which goes to the very
root of the decision by the learned Appellate Judge, as it is biased, there is other alternative except to remand the matter to the first appellate court.
The power of remand, as already pointed out is inherent in the Appellate jurisdiction conferred on this Court and merely because the present case
will not fall under any one or more of the provisions of Order 41, Rule 23 to 25 and 27, that shall not deter this court from exercising its inherent
power of demand to render substantial justice.
It is the essence of the judgment, it is important after due observance of judicial process (i.e) the Court passing the orders, observes atleast the
minimal requirements of natural justice and one of them being impartial person acting fairly and without bias and in good faith. This is definitely
wanting in this case and the vase of the bias is made out. The judgment, which is a result of bias or one of impartility is a nullity and the trial, it is
well settled is a coram nonjudice. To put it plainly, a biased judgment or verdict is not judgment in the eye of law.
This Court wilt not be justified in decision the appeal as if it is a first appeal as the same may result in deprivation of one more chance to the
appellant as the judgment in this second appeal has to be treated as it it is a first appeal, yet this is a second appeal. In the circumstances, while
holding that the judgment of first appellate court is a nullity, remand the entire matter to the first appellate court once again for de novo
proceedings.
The application taken out by the appellant for reception of additional evidence is also ordered to be returned to appellant with the original
documents to move the lower appellate court afresh. The lower appellate court, in view of the fact that the first appeal is of the year 1988, it shall
endeavor to dispose of the first appeal within six months from the date of communication of this judgment. The appeal is remanded accordingly.
Consequently, connected C.M.Ps are closed.
The court fee paid on the appeal memorandum is ordered to be refunded to the appellant.
The parties shall appear before the lower appellate court on 20.6.2001. The Registry is directed to forward the entire appeal papers as well as
the original records to the lower appellate court without delay.