AGARWAL, J. - (1.) This reference has been made in the following circumstances : In this Civil Second Appeal an order was passed on 17th January, 1986 for it being put up in Court for hearing on 24th February, 1986. On 24th February, 1986 it could not be listed in the Court for hearing because on that day there was no roster for Civil Second Appeals. It was listed in the Court on 26th February, 1986. On 26th February, 1986 neither the appellant nor his counsel was present and the appeal was dismissed in default by D.L. Mehta, J. The appellant thereafter moved an application for restoration (S.B. Civil Misc. Restoration Application No.63 of 1986). The said application for restoration was allowed by D.L. Mehta, J. by his order dated 18th March, 1986 on the view that the Registry of this Court had committed a mistake in listing this case on 26th February, 1986 although on 24th February, 1986 no date was given. In this connection the learned Judge has observed as under: "Whatever may be the position of the past but the present and the future cannot be forgotten. The cannons fired by Mr. Munshi are right and the shots which he has fired is a piercing shot. The Registry or we the Judges sitting in Full Court should notice the working of the Registry. Even on 24th February no date was given and the case was listed on 26th. It seems that there is no rule of law and the rules framed by the High Court are only for the purpose of violation and not for the purpose of compliance. It is expected that that the Registry of this Court, who are the guardians of the law, should at least respect for the law and rules framed by the Court itself If the rules are not to be followed and are only to be violated there is no necessity of Registry itself. It seems that there is an inherent weakness somewhere which shows that the Registry is neither functioning nor acting in accordance with the rules. I hereby direct and issue a mandamus against the Registrar and the Addl. Registrar to follow the Rules and to act according to the rules. Non-compliance of this order may lead a contempt proceeding against them. This Court, in some cases, has already issued notices for the initiation of the proceedings. The Registrar and the Addl. Registrar should make out a detailed inquiry into the cases and should place the papers before me to deal it judicially on 2nd April, 1986, so that necessary judicial orders may be passed to streamline the working of the judiciary and, if necessary, to bring it to the notice of the Full Court sitting on administrative side." By the order dated 18th March, 1986 the appeal was directed to be put up on 3rd April, 1986. In pursuance of the said order dated 18th March, 1986 the Deputy Registrar of this Court submitted a factual report along with the explanation of the concerned clerks, Office Superintendent of Civil Section and In charge cause-list section and the Addl. Registrar also submitted his report. On 3rd April, 1986 the appeal was placed before N.M. Kasliwal, J. who after hearing the learned counsel for the parties disposed of the said appeal by his judgment dated 3rd April 1986. After considering the reports submitted by the Deputy Registrar and the Additional Registrar, Kasliwal, J. passed an order dated April 11, 1986 wherein he has observed that the Registry had raised an important and moot question as to how and in what manner the directions given by Mehta, J. in his order dated 18th March, 1986, whereby a mandamus was given against the Registrar and Addl. Registrar to follow the Rules and to act according to Rules and a direction has also been given that non-compliance of the said order may lead contempt proceedings against them, can be complied with. Kasliwal, J. has expressed the view that a very important question which arises in the case is whether any direction in the nature of mandamus can be given while deciding a restoration application and that it has to be further considered whether the Court in a civil case can give any direction which has nothing to do with the merits or controversy of that case or it can given a direction only relating to the matter in issue or controversy involved between the parties in that particular civil case and that it has to be further seen whether a general direction of the kind that Registrar and Addl. Registrar should follow the Rules and to act according to the Rules, can be given or not, especially when the non-compliance of such order has been threatened by contempt proceedings against them. Kasliwal, J. was of the view that the above questions are of far-reaching consequences and raise important questions of law regarding the scope of authority of the Court passing such orders and in his opinion such matter should be decided by a larger bench. He, therefore, directed that the papers should be placed before Hon'ble the Chief Justice for constituting a larger bench for deciding the above matter at an early date. In accordance with the aforesaid directions given by Kasliwal, J. in his order dated 11th April, 1986, the matter was placed before Hon'ble the Chief Justice who has constituted this bench to hear this reference.
(2.) We have heard the learned Government Advocate on the questions which arise for consideration in this reference. In addition we have heard Shri R.N. Munshi, and R.M. Lodha, the learned counsel appearing for both the parties in the Civil Second Appeal and a number of Advocates who desired to address the Court on the said questions.
(3.) As mentioned in the order of reference passed by Kasliwal, J., the following questions are required to be considered by this Bench :- 1. Whether any direction in the nature of mandamus can be given while deciding a restoration application? 2. Whether the Court in a civil case can give any direction which has nothing to do with the merits or controversy of that case or it can give a direction only relating to the matter in issue or controversy involved between the parties in that particular civil case? 3. Whether a general direction of the kind that Registrar and Addl. Registrar should follow the Rules and to act according to Rules, can be given or not especially when non-compliance of such order has been threatened by contempt proceedings against them?;