In the Bombay City Civil Court

SUIT NO.________ OF 2018

Mathews J. Nedumpara,
aged 59, Advocate,
residing at 12-F, Harbour Heights,
A Wing, 12th Floor, Sassoon Dock,
Colaba, Mumbai 400 005. Plaintiff

Versus

Hon’ble Shri Justice S.J. Kathawalla,
Judge,
High Court of Judicature at Bombay,
Mumbai-400 032. Defendant

SUIT UNDER SECTION 26 ORDER 1 RULE 1 OF THE CIVIL PROCEDURE CODE, 1908.

THE PLAINTIFF ABOVENAMED STATES AS FOLLOWS:-

1. The Plaintiff is a citizen of India. He is a lawyer by profession having enrolled with the Bar Council of Kerala in the year 1984 and practicing since then in various Courts and Tribunals in the country and, in particular, in the High Court of Judicature at Bombay. The instant suit is instituted for the enforcement of his fundamental rights.

2. The Defendant, Hon’ble Shri Justice S.J. Kathawalla, is a Sitting Hon’ble Judge of the High Court of Judicature at Bombay. He is a necessary and proper party since in the instant suit, which is primarily one seeking a declaratory relief, arises out of a cause of action emanating from the discharge of his duty by the Defendant as a Judge of the High Court. The brief facts leading to the instant suit are as infra:

3. The Plaintiff was engaged by one Shri ________ Gaonkar, Defendant No.1 in Commercial Civil Suit No.____ instituted against him by one Shri Agarwal in the Hon’ble High Court of Judicature at Bombay, since his lawyer sought discharge, which was granted by Hon’ble Shri Justice Kathawalla as no other lawyer was willing to accept his brief. Upon Shri Gaonkar briefing him of the facts of the said suit, the Plaintiff felt it as his duty as a lawyer to accept the case and advised him to engage Mrs. Rohini Amin, an associate of his, as Advocate on record. The grievance of Shri Gaonkar was that Hon’ble Shri Justice Kathawalla heard his case in Chamber during the Summer Vacation of 2017 and continued to hear the case and pass orders therein even after the change of the roster; that he was forced by His Lordship to enter into consent terms against his will; that he had a very raw deal at the hands of His Lordship inasmuch as on the very first day of the hearing when he appeared on receipt of the summons, he was threatened to be sent to jail unless he met the claim of Shri Agarwal from whom he had availed of certain loan at the rate of 36% per annum. If the grievance of Shri Gaonkar is true, it meant erroneous recording of the proceedings in the suit by Hon’ble Shri Justice Kathawalla, which cannot be corrected except by an application for correction of the records/recall of the orders passed by His Lordship, for, records of a Court of record are of great verity and incontrovertible and it cannot be corrected anywhere except by the same Court by means of an appropriate proceeding; that the correctness of the minutes/records of a Court cannot be impugned in an appeal.

4. Accordingly, an application for recall/rectification of the error crept in in the minutes of the proceedings in Suit No._________ was instituted. A copy of the said application is produced as Exhibit A. Hon’ble Shri Justice Kathawalla heard the Plaintiff as counsel for Shri Gaonkar and by order dated ____________ rejected the said application imposing a cost of Rs.5 lakhs on Shri Gaonkar. A copy of the order dated _________ is produced as Exhibit B. Shri Gaonkar challenged the said order by way of an appeal, a copy whereof is produced as Exhibit C.

5. Hon’ble Shri Justice Kathawalla in his order dated ____________ (Exhibit B hereto) made certain observations to the effect that the Plaintiff is a most unethical lawyer; that he entertained clients like Shri Gaonkar for hefty fees in the expectation that unethical clients like Shri Gaonkar would approach him and manifestly to profit thereby. The said observations which received wide publicity in the print and electronic media are extracted below. Copies of the news reports appeared in the Indian Express, Free Press Journal and Live Law are produced as Exhibits D, E and F, respectively.
(Please extract the observations)

6. The Plaintiff thereafter received many calls from even strangers far away from USA; so too from his home State, Kerala. In accepting the brief of Shri Gaonkar and advising him to engage Mrs. Rohini Amin as Advocate on record and rendering him legal advice, including drafting an application for recall of the orders passed by Hon’ble Shri Justice Kathawalla, as aforesaid, the Plaintiff has only discharged his sacred duty as a lawyer. The allegations made by Shri Gaonkar are not the allegations of the Plaintiff against Hon’ble Shri Justice Kathawalla. Those are the allegations of Shri Gaonkar, the Plaintiffs client. It is the case of Shri Gaonkar that the orders passed by Hon’ble Shri Justice Kathawalla in Commercial Suit No.______ are void, and not that of the Plaintiff. Shri Gaonkar challenged the aid orders on the premise that they are null and void. The order dated _____ (Exhibit B) passed by Hon’ble Shri Justice Kathawalla, whether it is null and void or valid or voidable, is of no consequence in so far as the Plaintiff is concerned. Shri Gaonkar is a client of the Plaintiff and to protect his right is the Plaintiffs sacred duty as a lawyer, nothing more, nothing less. The observations extracted above, which are false and defamatory, have infringed the legal and fundamental rights of the Plaintiff.

7. Ubi jus, ibi remedium, where there is a right there is a remedy, is a fundamental principle of law. The Plaintiff having been defamed by the aforesaid observations of Hon’ble Shri Justice Kathawalla is entitled to the remedies which the law provides for, including damages. The Plaintiff suffered great damage to his reputation which is difficult to be quantified in terms of money. The Plaintiff, even at the risk of being misunderstood to be praising himself, begs to submit that he is fairly known all over the country as leading a campaign called the National Lawyers Campaign for Judicial Transparency and Reforms with its headquarters in Mumbai. The scathing observations made against him by Hon’ble Shri Justice Kathawalla, as aforesaid, branding him as an unethical lawyer, no matter whether Hon’ble Shri Justice Kathawalla had intended any injury or not, has caused irreparable damage to the reputation of the Plaintiff. The Plaintiff is, therefore, entitled to compensation. Considering the high constitutional office being occupied by Hon’ble Shri Justice Kathawalla as a Judge of the High Court of Bombay, an office which the Plaintiff considers to be most sacrosanct of all public offices as the Plaintiff regards Judges as deities and Courts as Temples of Justice, he find it too agonizing to think of seeking a compensation of more than Re.1/- from His Lordship, though it may appear to be too incongruous and unbelievable, His Lordship having wounded the Plaintiff so much, still it is an undeniable truth that the Plaintiff holds Hon’ble Shri Justice Kathawalla in high esteem and is no foe of him but a well wisher, the Plaintiff being slightly senior to His Lordship in age, as well. The Plaintiff is more than willing to forgive Hon’ble Shri Justice Kathawalla of the false and defamatory accusations made against him, nay, has forgiven him. Yet, reputation being a persons greatest asset, it was inconceivable for the Plaintiff to have left things as it is. The Plaintiff, therefore, thought of instituting a suit seeking a nominal compensation of Re.1/-. However, he hesitated since to institute a suit in a subordinate Court against a Judge of the High Court may appear to the common man as an ill-advised step. The question which pondered the Plaintiff was if judicial review will lie where a citizen is deprived of his fundamental right or to declare an Act of Parliament or an executive action or even an act of a private person in the discharge of his public duty as unconstitutional, could judicial review be denied where fundamental rights are violated by judicial orders. The answer could only be an emphatic No. The mandate of Article 13(2) of the Constitution is crystal clear; it makes no distinction between legislature, executive and judiciary. Yet, the general perception is that no judicial review can be sought where violation of fundamental rights is caused at the hands of High Courts and the Supreme Court, while it will lie if it is by the subordinate judiciary. There are many judgments which seem to support this proposition. The judgment in Judges-2 case (the collegium case) even suggests the most preposterous proposition that no judicial review will lie even against the recommendation of the collegium, which is purely an administrative decision. Whether superior judiciary is a State and whether judicial review will lie against violation of fundamental rights caused by superior judiciary offer no clarity, though to any lawyer, who is clear in his mind of the first principles of constitutional law, there could be no reason for any doubt in this regard. The genesis of all the misconception is the judgment of the Nine-Judge Constitution Bench of the Supreme Court in Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. In the said case, the Court did not authoritatively pronounce that judiciary can violate fundamental rights with immunity; that judiciary is a State; that no declaration could be sought under Article 226 or Article 32 that a judicial order which is violative of fundamental right is null and void. The judgment in Naresh Shridhar Mirajkar has to be understood in its narrow realm; it only said that a writ of certiorari will lie against the superior Court (Supreme Court) or co-ordinate Bench of the same High Court or of another High Court or a co-ordinate Bench of the Supreme Court. However, in many subsequent judgments, the judgment in Naresh Shridhar Mirajkar was taken to be an authority for the proposition that no proceeding under Article 32 will lie against judicial orders of superior Courts.

8. The Plaintiff accordingly instituted Writ Petition No.________ in the Hon’ble High Court of Judicature at Bombay seeking a declaration that the order dated _____________ passed by Hon’ble Shri Justice Kathawalla in so far as the false and defamatory allegations/observations against the Plaintiff is void; so too seeking a nominal compensation of Re.1/-. The Bombay Bar Association (BBA), which is not a party to the said Writ Petition, filed an intervention application in the said Writ Petition pointing out that no writ will lie and the remedy open to the Plaintiff is to file an appeal. A copy of the said application is produced as Exhibit G. The Plaintiff filed a counter affidavit to the said application pointing out that nothing would be more preposterous than the advice, unsolicited though, of the BBA that the Plaintiff could seek redressal by way of an appeal inasmuch as in the appeal the nominal compensation of Re.1/- from Hon’ble Shri Justice Kathawalla cannot be recovered without His Lordship being made a party; so too to arraign His Lordship as a Respondent to the appeal is against the first principles of jurisprudence. The BBA also forgot that neither the Plaintiff nor Hon’ble Shri Justice Kathawalla is a party to Suit No.________ and that appeal is continuation of the original proceeding; so too that it is of little consequence from the point of view of the Plaintiff whether the order of Hon’ble Shri Justice Kathawalla is void or valid. Even if the said order is valid, and assuming that Shri Gaonkar deserves all the adverse findings against him, then also no observation which is ex facie false and defamatory ought to have been made against the Plaintiff. A copy of the counter affidavit filed by the Plaintiff is produced as Exhibit H.

9. This Hon’ble Court is a Court of record with plenary jurisdiction; it is competent to hold even an Act of Parliament as unconstitutional. However, the common perception is to the contrary. The Plaintiff has never seen anyone filing a suit for a declaration that an Act of Parliament is unconstitutional, for, everyone presumes that no such power is vested in its original civil jurisdiction and that such powers are vested only in the High Courts under Article 226 and the Supreme Court under Article 32. Therefore, the Plaintiff was left with no option than filing an application for amendment of Writ Petition No._________ for a declaration that Section 3 of the Judges (Protection) Act, 1985 is unconstitutional. A copy of the said application is produced as Exhibit I.

10. Though the Plaintiff has sought a nominal compensation of Re.1/-, he is willing to even forgo that; so too to give up and abandon the instant suit and all legal actions initiated by him, if to do so is necessary to uphold the majesty of law and the sanctity of the institution of judiciary.

11. The cause of action for the instant suit arose on when Hon’ble Shri Justice S.J. Kathawalla made the false and defamatory observations in the order dated ______________ The present suit, therefore, is within the period of limitation.

VALUATION

12. The Plaintiff values the suit for the purpose of Court-fee and jurisdiction at Rs.__________ and a Court-fee of Rs. _______ is levied and paid.

13. The Plaintiff will rely upon the documents, a list whereof is annexed hereto.

JURISDICTION

14. This Hon’ble Court has jurisdiction to try and entertain the above suit

15. The instant suit is not barred by the doctrine of estoppel or res judicata.

THE PLAINTIFF, THEREFORE, PRAYS THAT THIS HON’BLE COURT BE GRACIOUSLY PLEASED TO:

(a) declare that the observations made by Hon’ble Shri Justice S.J. Kathawalla in his order dated _____________ in Notice of Motion No.__________ in Suit No.__________ (quoted in paragraph __ of the instant suit) are ex facie false and defamatory, which have defamed the Plaintiff to such a great extent that no compensation in terms of money would suffice and that the Plaintiff is entitled to a nominal compensation of Re.1/-, which alone he seeks considering the great awe and respect he has for the institution of judiciary and Hon’ble Shri Justice S.J. Kathawalla as a noble Judge;

(b) declare that Section 3 of the Judges (Protection) Act, 1985 is unconstitutional and void inasmuch as it is ultra vires Article 13(2) of the Constitution;

(c) direct Hon’ble Shri Justice S.J. Kathawalla to pay to the Plaintiff a nominal compensation of Re.1/-;

(d) pass such further and other orders as the nature and circumstances of the case may require.

Advocate for the Plaintiff Plaintiff
VERIFICATION

I, Mathews Nedumpara, S/o. Joseph, aged 55, Advocate, residing at 12-F, Harbour Heights, A Wing, 12th Floor, Sassoon Dock, Colaba, Mumbai 400005, the Plaintiff abovenamed, do hereby solemnly declare that what is stated in paragraphs 1 to __ of the foregoing Suit are true to my own knowledge and belief and what is stated in the remaining paragraphs are based on information which I believe to true and correct.

Solemnly declared at Mumbai ]
this ___ day of June, 2018. ] Plaintiff