From the bare perusal of the Section 1 of The 1850 Act, it is clear that the Judicial Officer acting judicially is protected in respect of any act done or ordered to be done by him in the discharge of his judicial duty provided he in good faith believed himself to have jurisdiction to do or order the act complained of. Insofar as Section 3 of The 1985 Act, which provides additional protection to Judges clearly stipulates that no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Thus, Section 3 gives complete immunity to a Judge or Ex-Judge in respect of any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Section 4 of the said Act also provides that provision of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force providing for protection of Judges. The conjoint reading of sections 3 and 4 makes it clear that the protection given to a Judge or Ex-Judge for any act, thing or word committed, done or spoken by him while discharging official or judicial function is absolute. Under Section 1 of The 1850 Act the protection from being sued in civil suit is available to a Judge or Magistrate for any act done or ordered to be done by him in the discharge of his judicial duty provided he in good faith believed himself to have jurisdiction to do or order the act complained of. As such the protection available to a Judge under The 1850 Act is in respect of any action taken in good faith whereas the protection available under The 1985 Act is absolute and is even available not only to a sitting Judge but also to an Ex-Judge in respect of the actions taken or words spoken by him while discharging his official or judicial function. The reason behind giving absolute protection by The 1985 Act is quite obvious. If such an absolute protection is not given, the Judge or Ex Judge runs the risk of facing civil action at the instance of the disgruntled litigants who may have been aggrieved by adverse orders passed against them. If such an absolute protection is not given, a Judge or an Ex-judge is likely to face frivolous suits at the instance of the litigants who are aggrieved by adverse orders passed by the Judge or Ex-Judge. Therefore, in order to give absolute protection to the Judge not only during his tenure but even thereafter, the Legislature thought it fit to enact The Judges (Protection) Act, 1985. A bare reading of Sections 3 and 4 of the said Act makes the intention of the legislature to give complete protection to a Judge sitting or retired clear.
Bombay High Court
N.V. Shamsunder, Civil Judge (Sr. ... vs Savitabai Wd/O Sambhirmal ... on 28 July, 2006
Equivalent citations: 2006 (5) MhLj 639
Bench: A Lavande
1. This revision application raises an important question of law as to whether a suit claiming compensation is maintainable against the Judge in respect of the alleged inaction on his part while discharging judicial function.
2. This revision is directed against the order dated 5-11-1998 passed by the Joint Civil, Judge (Sr. Dn.,) Pusad in Special Civil Suit No. 32/96 dismissing the application filed by the applicant under Order VII, Rule 11 of the Code of Civil Procedure. The applicant is the defendant No. 1, the respondents 1 to 6 are the plaintiffs and the respondents 7 and 8 are the defendant Nos. 2 and 3 respectively in the said suit. The parties shall be hereinafter referred to in their status in the trial Court.
3. Briefly, the facts which are relevant for disposal of the Civil R
evision Application are as follows:
Respondents 1 to 6, being legal representatives of Gambhirmal Singhvi, filed the above suit claiming compensation of Rs. 51,688/- with interest thereon against the defendants. The case of the plaintiffs in the suit is that the defendant No. 1 was working as Civil Judge, Sr. Dn., Pusad and defendant No. 2 was working in the Court and was In-charge of the property transactions during the period September, 1992 to April, 1993. It is the further case of the plaintiffs that property bearing Survey No. 24/2 admeasuring 4H and 86R situated at Mouja Ukri, Tah. Digras belonging to Gambhirmal Singhvi was acquired under the provisions of the Land Acquisition Act. The Land Acquisition Officer awarded compensation @Rs. 8500/- per hectare. The Reference was sought under Section 18 of the Land Acquisition Act and in Land Acquisition Case No. 260/90 the Reference Court enhanced the compensation to Rs. 40,000/- per hectare by the Judgment and Award dated 30-4-1991. Gambhirmal Singhvi expired on 5-9-1991. Thereafter the plaintiffs claimed the amount of enhanced compensation awarded. According to the plaintiffs, the compensation of Rs. 4,96,903/- was deposited by the Government on 7-9-1992 in the Court. Thereafter it was claimed that the said amount was not invested by the defendant No. 1 as per the circular issued to by the District Courts pursuant to the decision given by this Court on 22-11-1985 in First Appeal No. 219/83. The Circular was issued in terms of the said judgment and as per the circular the defendant No. 1 was required to invest the amount deposited in any Nationalised Bank whether or not the party applied for the same so that the successful party would earn interest on such amount. According to the plaintiffs, on account of inaction on the part of the defendants 1 and 2, the plaintiffs lost interest on the amount deposited. The said amount came to be deposited by the successor of the defendant No. 1 after the applicant was transferred from Pusad. Before filing the suit, plaintiff No. 2 by communication dated 25-4-1994 requested the Chief Justice of Bombay High Court to direct defendant No. 1 for repayment of the said amount to the plaintiffs and to take appropriate steps against the defendants 1 and 2. The Additional Registrar vide reply dated 4-5-1995 informed the plaintiff No. 2 to make request before the appropriate forum by filing a appropriate proceedings. Thereafter, the plaintiffs sent a notice dated 8-9-1995 under Section 80 of the Code of Civil Procedure to defendants 1 and 2 and a copy thereof was endorsed to defendant No. 3 demanding the amount of Rs. 40,540/- with interest thereon @10% p.a. The defendant No. 1 by reply dated 29-9-1995 denied the claim of the plaintiffs. Thereafter, on 20-4-1996 the above suit was filed by the plaintiffs. Upon being served with the summons, the defendant No. 1 filed an application on 10-10-1996 under Order VII, Rule 11 of the Code of Civil Procedure on two grounds, firstly, on the ground that the suit did not disclose any cause of action and secondly on the ground that the suit was barred under the Judicial Officers Protection Act of 1850 (hereinafter referred to as The 1850 Act) and the Judges (Protection) Act, 1985 (hereinafter referred to as The 1985 Act). The plaintiffs by reply dated 23rd September, 1996 opposed the application for rejection of the plaint filed by the plaintiffs. After hearing the parties, the learned Judge of the trial Court by the impugned order dismissed the application filed by the defendant No. 1.
4. Mr. Bhangde, learned Counsel appearing on behalf of the defendant No. 1 relying upon Section 1 of the Judicial Officers' Protection Act, 1850 and Section 3 of the Judges (Protection) Act, 1985 submitted that the suit was clearly barred under the said Acts. According to Mr. Bhangde, since according to the plaintiffs themselves the defendant No. 1 did not discharge his judicial function properly as mandate by the Judgment of the High Court and the circular issued thereafter, the suit filed against the defendant No. 1 was clearly barred under Section 3 of the Judges (Protection) Act, 1985. According to Mr. Bhangde, Section 3 of the Judges (Protection) Act, 1985 provides complete immunity to a Judge from any action being initiated against him while discharging his judicial function. Therefore, according to Mr. Bhangde the impugned order deserves to be quashed and set aside and considering the fact that the defendant No. 1 was sued for an action taken by him as a Judge, exemplary costs deserve to be imposed on the plaintiffs.
5. Per contra, Shri Darda, the learned Counsel appearing for respondents 1 to 6 submitted that there was a clear inaction on the part of the defendant No. 1 in not discharging judicial function of investing the amount deposited by the Government in terms of the Judgment passed by this Court and the circular issued pursuant to the said judgment and, therefore, the protection under both these Acts is not available to the defendant No. 1. He further submitted that the plaintiffs have filed the suit against the defendants believing in good faith that the suit is the only remedy available to them to seek redress in the matter. Mr. Thakre, the learned A.G.P. supported arguments advanced on behalf of the applicant.
6. I have considered the submissions made by the learned Counsel and perused the record. Since the immunity is claimed by the defendant No. 1 under the above two Acts, it would be appropriate to quote Section 1 of the Judicial Officers' Protection Act of 1850 and Section 3 of the Judges (Protection) Act, 1985. Section 1 of the Judicial Officers Protection Act of 1850 reads as under:
1. Non-liability to suit of officers acting judicially, for official acts done in good faith and of officers executing warrants and order:- No Judge, Magistrate, Justice of Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: Provided that he at the time in good faith, believed himself to have jurisdiction to do or order the act complained of; and no officer of any Court or other person, bound to execute the lawful warrants or orders of any such judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same.
Section 3 of the Judges (Protection) Act, 1985 reads as under:
Additional protection to Judges :- (1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of Sub-section (2), no Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function.
(2) Nothing in Sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal or departmental proceedings or otherwise) against any person who is or was a Judge.
7. From the bare perusal of the Section 1 of The 1850 Act, it is clear that the Judicial Officer acting judicially is protected in respect of any act done or ordered to be done by him in the discharge of his judicial duty provided he in good faith believed himself to have jurisdiction to do or order the act complained of. Insofar as Section 3 of The 1985 Act, which provides additional protection to Judges clearly stipulates that no Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Thus, Section 3 gives complete immunity to a Judge or Ex-Judge in respect of any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function. Section 4 of the said Act also provides that provision of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force providing for protection of Judges. The conjoint reading of sections 3 and 4 makes it clear that the protection given to a Judge or Ex-Judge for any act, thing or word committed, done or spoken by him while discharging official or judicial function is absolute. Under Section 1 of The 1850 Act the protection from being sued in civil suit is available to a Judge or Magistrate for any act done or ordered to be done by him in the discharge of his judicial duty provided he in good faith believed himself to have jurisdiction to do or order the act complained of. As such the protection available to a Judge under The 1850 Act is in respect of any action taken in good faith whereas the protection available under The 1985 Act is absolute and is even available not only to a sitting Judge but also to an Ex-Judge in respect of the actions taken or words spoken by him while discharging his official or judicial function. The reason behind giving absolute protection by The 1985 Act is quite obvious. If such an absolute protection is not given, the Judge or Ex Judge runs the risk of facing civil action at the instance of the disgruntled litigants who may have been aggrieved by adverse orders passed against them. If such an absolute protection is not given, a Judge or an Ex-judge is likely to face frivolous suits at the instance of the litigants who are aggrieved by adverse orders passed by the Judge or Ex-Judge. Therefore, in order to give absolute protection to the Judge not only during his tenure but even thereafter, the Legislature thought it fit to enact The Judges (Protection) Act, 1985. A bare reading of Sections 3 and 4 of the said Act makes the intention of the legislature to give complete protection to a Judge sitting or retired clear. That being the position, in my view, there is considerable merit in the submission of Mr. Bhangde that the trial Court exercised jurisdiction illegally in rejecting the application under Order VII, Rule 11 of the Code of Civil Procedure. It is the case of the defendant No. 1 that the suit filed against the defendant No. 1 was clearly barred and, therefore, the plaint was liable to be rejected as against the defendant No. 1 under Order VII, Rule 11(d) of Civil Procedure Code on the ground that there was a bar to file the suit. Since the suit was clearly barred under Section 3 of the 1985 Act, the application filed by the defendant No. 1 ought to have been allowed by the trial Court. I am, therefore, of the opinion that the trial Court exercised jurisdiction illegally in rejecting the application filed by the defendant No. 1. I am unable to accept the submission of Mr. Darda appearing on behalf of the respondents 1 to 6 that the respondents 1 to 6 have filed the suit against the defendants in good faith believing that the suit is the only remedy available in view of the communication of the Registrar and the notice under Section 80 of the Code of Civil Procedure issued to the defendants. The suit must have been filed by the plaintiffs against the defendants after obtaining legal advise and if the plaintiffs have been wrongly advised in filing the suit which is patently not maintainable, they cannot come with the plea that the suit was filed in good faith. Moreover, it is pertinent to note that the application filed under Order VII, Rule 11 of the Code of Civil Procedure by the defendant No. 1 in the trial Court was vehemently contested in the trial Court by respondents 1 to 6. They have also contested the present Revision Application. Therefore, I am unable to accept the submission of Mr. Darda, I am, therefore, of the opinion that the impugned order deserves to be quashed and set aside.
8. The next question which arises for consideration is whether the defendant No. 1 is entitled to exemplary costs as submitted by the learned Counsel appearing on behalf of the applicant. On this aspect, I find considerable merit in the submission of Mr. Bhangde because the plaintiffs not only vehemently contested the application filed by the defendant No. 1 for rejection of the plaint but also vehemently defended the impugned order in the present Revision Application. I am, therefore, inclined to accept the submission of Mr. Bhangde and that having regard to the facts and circumstances of the case exemplary costs deserves to be awarded against the plaintiffs/respondents 1 to 6 in favour of the applicant. Considering the fact that the plaintiffs filed the suit against the applicant for his alleged inaction in discharging judicial function while functioning as Judge, which was clearly not maintainable and having regard to the time during which the defendant No. 1 has to face the proceedings which are patently not maintainable I am of the opinion that it would be just and proper to award costs of Rs. 10,000/- against the plaintiffs/respondents 1 to 6.
9. In the result, therefore, the Revision Application is allowed. The impugned order dated 5-11-1999 passed by the Joint Civil Judge (Sr. Dn.) Pusad in Special Civil Suit No. 32/96 is quashed and set aside and plant is rejected under Order VII, Rule 11 of the Code of Civil Procedure as against applicant/defendant No. 1. The
plaintiffs/respondents 1 to 6 are ordered to pay costs of Rs. 10,000/- to the applicant. The same shall be deposited in this Court within a period of four weeks and after they are deposited the applicant is at liberty to withdraw the same without further reference to the Court.
10. Since the respondents 7 and 8 who are the original defendants have not challenged the proceedings filed against them, the suit shall proceed as against them and the trial Court shall decide the same in accordance with law. Interim order dated 19th July, 1999 stands vacated. The records and proceedings of the trial Court which have been called, shall be sent expeditiously to the trial Court. The parties to appear before the trial Court on 12th September, 2006 at 11 a.m. The Revision stands disposed of in the aforesaid terms.
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