IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO._4728  OF 2010 (Arising out of S.L.P. (C) No.23869 of 2009)

‘K’ A Judicial Officer … Appellant

Versus

Registrar General,  High Court of A.P. … Respondent

O R D E R

1. Leave granted.

2. The appellant  who is  a  member  of  superior  judicial  service of  the  

State of Andhra Pradesh has preferred this appeal for expunging the remarks  

made by the Division Bench of Andhra Pradesh High Court in paragraphs 10  

and 11 of order dated 25.6.2009 passed in Civil Misc. Appeal No.420 of  

2009 and the direction contained in paragraph 13 thereof.

3. Pochamreddy Subba Reddy and three others (hereinafter referred to as  

`the plaintiffs’) filed O.S. No.1 of 2009 for grant of permanent injunction to  

restrain  Maddika  Nageshwari  and six  others  (hereinafter  referred  as  `the  

defendants’) from interfering with the plaint schedule properties.  They also  

filed I.A. No.34 of 2009 for grant of temporary injunction.  The defendants  

contested the prayer for temporary injunction by asserting that the plaintiffs

do not have any right over the suit property and that in the suits filed by  

them temporary  injunction  has  already   been  granted  by  the  trial  Court  

restraining the plaintiffs from interfering with their possession.  By an order  

dated 12.3.2009, the appellant, who was then holding the post of Principal  

District  Judge,  Kadapa,  granted  temporary  injunction  in  favour  of  the  

plaintiffs  and  restrained  the  defendants  from  interfering  with  the  plaint  

schedule  property.  Simultaneously,  he  injuncted  the  plaintiffs  from  

intermeddling with the suit property.   While passing the order of injunction,  

the appellant did take cognizance of the fact that the defendants had filed  

O.S.  Nos.  336  of  2008  and  781  of  2008  against  the  plaintiffs  and  the  

concerned courts had passed order of injunction in their favour and that this  

fact was against the plaintiffs, but still he directed the parties to maintain  

status quo.

4. The defendants carried the matter to the High Court.  The Division  

Bench of the High Court allowed the Civil Miscellaneous Appeal No. 420 of  

2009 filed by them and set aside the order passed by the appellant mainly on  

the  ground that  while  granting  injunction  in  favour  of  the  plaintiffs,  the  

learned Judge totally ignored that in the suits filed by the defendants, trial  

Court  had already passed order  of injunction and restrained the plaintiffs  

from interfering with  their  possession.   The Division Bench of  the  High  

Court also observed that in view of the injunction order passed in favour of  

the  defendants,  the  appellant  was  not  at  all  justified  in  directing  the  

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defendants  not  to  interfere  with  the  possession  of  the  plaintiffs.   While  

allowing the appeal preferred by the defendants, the Division Bench of the  

High Court made scathing criticism of the appellant as a Judicial Officer and  

recorded highly disparaging remarks in paragraphs 10 and 11, which read as  

under:

“10. This  attitude  of  the  learned District  Judge is  out  of  sheer arrogance and disrespect to the lawful orders passed by  subordinate  Courts.   Even  if  he  is  disagreeable  with  the  findings  reached  by  the  Subordinate  Courts  in  granting  injunction in favour of the defendants in the suits filed by  them, unless those orders are set aside or modified, as the  case may be, in parallel proceedings, he cannot nullify those  injunction  orders  so  granted  in  favour  of  the  defendants  which can be done only by the appellate Court in the appeal,  if  any filed.   Admittedly,  no  such  appeals  were  preferred  against the temporary injunction orders granted in favour of  the  defendants.   In  the  absence  of  the  same,  granting  injunction in favour of the plaintiffs will not only create law  and  order  problem  but  also  diminish  the  image  of  the  judiciary  among  the  general  public  and  the  implementing  agencies of the injunction order like police, as they will be in  a  turmoil  situation as  to which injunction order  would be  implemented.  It must be remembered that it is the duty of  every member of the legal fraternity to ensure that the image  of the judiciary is not tarnished and its respectability eroded.  The manner in which proceedings were taken by the learned  Judge exposes a total lack of respect for judicial discipline.  Judicial  authoritarianism  is  what  the  proceedings  in  the  instant  case  smack  of.   It  cannot  be  permitted  under  any  guise.  Judges must be circumspect and self disciplined in  the  discharge  of  their  judicial  functions.   Further,  the  impugned order, if allowed to stand, will create a law and  order problem and lead to unrest and fight among the parties  with each one having injunction order in their favour.

11. We are deeply perturbed and pained with the attitude  of the learned District Judge in granting injunction in favour  of the plaintiffs.  For the reasons best known to the learned  District Judge, he appears to have decided to grant injunction  in  favour of  the  plaintiffs  in  support  of  which,  the  above  

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reasons  were  assigned  with  contradictory  observations  as  already pointed out.   For the forgoing reasons,  we cannot  sustain the impugned order passed by the lower Court and  the same is liable to be set aside.”

In para 13 of its order, the Division Bench gave the following directions:

“Registry  is  directed  to  place  this  order  as  well  as  the  impugned order  before the Administrative  Committee.   A  copy of this order shall remain placed on the personal file of  the officer concerned.”

5. The grievance of the appellant is that disparaging remarks contained  

in paragraphs 10 and 11 of the judgment of the Division Bench are not only  

contrary to the rules of natural justice but are also against the law laid down  

by this Court that the superior Court should exercise restraint and should not  

castigate  the  members  of  subordinate  judiciary  because  the  same  would  

affect the image of the judiciary in the eyes of the public.

6. On 11.9.2009, this Court granted permission to the appellant to file  

special  leave petition,  ordered issue of  notice  and stayed the direction  

contained in paragraph 13 of order dated 25.6.2009 passed in C.M.A. No.  

420 of 2009.  On 30.4.2010, the Court directed impleadment of the High  

Court of Andhra Pradesh as a party.  On 6.5.2010, the Bench presided by  

Hon’ble  the  Chief  Justice  directed  listing  of  the  case  during  summer  

vacation.  This is how the matter has been placed before the Bench during  

summer vacation.

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7. We have heard Shri L. Nageshwara Rao, learned senior counsel for  

the appellant and Shri Gaurav Pachnanda, learned counsel representing the  

High Court of Andhra Pradesh.

8. At  the  very  outset,  we  may  observe  that  the  learned  counsel  

representing the High Court very fairly stated that he has no comments to  

offer  in  the  matter  and the  High Court  neither  opposes  nor  supports  the  

appellant’s prayer.

9. The  question  whether  in  exercise  of  the  appellate/revisional  

jurisdiction qua the orders/judgments of courts subordinate to it, the High  

Court should make disparaging remarks/comments casting aspersions on the  

credibility of the Judicial Officer, whose order is under challenge, has been  

considered in several cases.  Almost 47 years ago, Gajendragadkar, J. (as he  

then was) speaking for a Bench of three-Judges in Ishwari Prasad Misra v.  

Mohd. Isa (1963) 3 SCR 722, stressed the need to adopt utmost judicial  

restraint  against  using strong language and imputation of corrupt motives  

against  lower  judiciary  by  observing  that  in  such matters,  the  concerned  

Judge has no remedy in law to vindicate his position.  In  K.P. Tiwari v.  

State of M.P., 1994 Supp (1) SCC 540, this Court reminded all concerned  

that using intemperate language and castigating strictures on the judges of  

the lower judiciary diminishes the image of judiciary in the eyes of public.  

Some of the observations made in that judgment are extracted below:

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“We are, however, impelled to remind the learned Judge  of the High Court that however anguished he might have  been over the unmerited bail granted to the accused, he  should not have allowed himself the latitude of ignoring  judicial precaution and propriety even momentarily. The  higher courts every day come across orders of the lower  courts which are not justified either in law or in fact and  modify  them  or  set  them  aside.  That  is  one  of  the  functions  of  the  superior  courts.  Our  legal  system  acknowledges  the  fallibility  of  the  judges  and  hence  provides  for  appeals  and  revisions.  A  judge  tries  to  discharge  his  duties  to  the  best  of  his  capacity.  While  doing so, sometimes, he is likely to err. It is well said that  a judge who has not committed an error is yet to be born.  And that applies to judges at all levels from the lowest to  the  highest.  Sometimes,  the  difference  in  views of  the  higher  and  the  lower  courts  is  purely  a  result  of  a  difference  in  approach  and  perception.  On  such  occasions, the lower courts are not necessarily wrong and  the  higher  courts  always  right. It  has  also  to  be  remembered that the lower judicial officers mostly work  under a charged atmosphere and are constantly under a  psychological pressure with all the contestants and their  lawyers  almost  breathing  down  their  necks  —  more  correctly up to their nostrils. They do not have the benefit  of a detached atmosphere of the higher courts  to think  coolly and decide patiently. Every error, however gross it  may look, should not, therefore, be attributed to improper  motive. It is possible that a particular judicial officer may  be  consistently  passing  orders  creating  a  suspicion  of  judicial  conduct  which  is  not  wholly  or  even  partly  attributable to innocent functioning. Even in such cases,  the proper course for the higher court to adopt is to make  note of his conduct in the confidential record of his work  and  to  use  it  on  proper  occasions.  The  judges  in  the  higher  courts  have  also  a  duty  to  ensure  judicial  discipline  and  respect  for  the  judiciary  from  all  concerned.  The respect for the judiciary is not enhanced  when  judges  at  the  lower  level  are  criticised  intemperately and castigated publicly. No greater damage  can be done to the administration of justice and to the  confidence of the people in the judiciary than when the  judges of the higher courts publicly express lack of faith  in the subordinate judges for one reason or the other. It  must be remembered that the officers against whom such  

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strictures are publicly passed, stand condemned for ever  in the eyes of their subordinates and of the members of  the public. No better device can be found to destroy the  judiciary  from  within.  The  judges  must,  therefore,  exercise  self-restraint. There  are  ways  and  ways  of  expressing disapproval of the orders of the subordinate  courts but attributing motives to them is certainly not one  of  them.  That  is  the  surest  way  to  take  the  judiciary  downhill.”

(emphasis supplied)

10. In  Braj Kishore Thakur v. Union of India (1997) 4 SCC 65, this  

Court  noted  that  while  allowing  an  appeal  preferred  by  the  Collector  of  

Customs, Patna against the grant of bail to two persons who were allegedly  

found in possession of 97 Kg of non-duty paid ganja,  the learned Single  

Judge of Patna High Court made scathing remarks against Sessions Judge-

cum-Special Judge, Purnia.  This Court quashed the remarks and observed:  

“No greater damage can be caused to the administration of  justice and to the confidence of people in judicial institutions  when Judges of higher courts publicly express lack of faith  in the subordinate Judges. It has been said, time and again,  that  respect  for  judiciary  is  not  enhances  by  using  intemperate  language  and  by  casting  aspersions  against  lower judiciary. It is well to remember that a judicial officer  against whom aspersions are made in the judgment could not  appear before the higher court to defend his order. Judges of  higher  courts  must,  therefore,  exercise  greater  judicial  restraint  and adopt  greater  care when they are tempted to  employ strong terms against the lower judiciary.”

11. In A.M. Mathur v. Pramod Kumar Gupta (1990) 2 SCC 533, this  

Court sounded a note of caution against making derogatory remarks against  

persons or authorities whose conduct comes under scrutiny and observed:

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“Judicial restraint and discipline are as necessary to the orderly  administration of justice as they are to the effectiveness of the  army. The duty of restraint, this humility of function should be  constant theme of our Judges. This quality in decision-making  is  as  much  necessary  for  Judges  to  command  respect  as  to  protect the independence of the judiciary. Judicial restraint in  this  regard  might  better  be  called  judicial  respect,  that  is,  respect by the judiciary. Respect to those who come before the  court  as  well  to  other  coordinate  branches  of  the  State,  the  executive  and the  legislature.  There  must  be  mutual  respect.  When these qualities fail or when litigants and public believe  that  the Judge has failed in these qualities,  it  will  be neither  good for the Judge nor for the judicial process.”

12. In the matter of  ‘K’ A Judicial Officer  (supra), the Court reviewed  

some of the earlier precedents and observed:

“The primary purpose of pronouncing a verdict is to dispose  of the matter in controversy between the parties before it. A  Judge is not expected to drift away from pronouncing upon  the controversy, to sitting in judgment over the conduct of  the judicial and quasi-judicial authorities whose decisions or  orders are put in issue before him, and indulge in criticising  and commenting thereon unless the conduct of an authority  or  subordinate  functionary or  anyone else than the parties  comes of necessity under review and expression of opinion  thereon  going  to  the  extent  of  commenting  or  criticising  becomes  necessary  as  a  part  of  reasoning  requisite  for  arriving  at  a  conclusion  necessary  for  deciding  the  main  controversy or it  becomes necessary to have animadverted  thereon for the purpose of arriving at a decision on an issue  involved  in  the  litigation.  This  applies  with  added  force  when  the  superior  court  is  hearing  an  appeal  or  revision  against an order of a subordinate judicial officer and feels  inclined to animadvert on him. The wisdom of a Superior  Judge  itching  for  making  observations  on  a  Subordinate  Judge before  ventilating  into  expression  must  pause  for  a  moment and read the counsel of Cardozo—  

“Write an opinion, and read it a few years later  when it is dissected in the briefs of counsel. You  will learn for the first time the limitations of the  power  of  speech,  or,  if  not  those  of  speech  in  

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general, at all events your own. All sorts of gaps  and  obstacles  and  impediments  will  obtrude  themselves  before  your  gaze,  as  pitilessly  manifest  as  the  hazards  on  a  golf  course.  Sometimes you will know that the fault is truly  yours, in which event you can only smite your  breast, and pray for deliverance thereafter.”  (Essays  on  Jurisprudence,  Columbia  Law  Review, 1963 at p. 315.)

In the case at hand we are concerned with the observations  made by the High Court against a judicial officer who is a  serving  member  of  subordinate  judiciary.  Under  the  constitutional  scheme  control  over  the  district  courts  and  courts  subordinate  thereto  has  been  vested  in  the  High  Courts. The control so vested is administrative, judicial and  disciplinary.  The  role  of  High  Court  is  also  of  a  friend,  philosopher  and  guide  of  judiciary  subordinate  to  it.  The  strength of power is not displayed solely in cracking a whip  on  errors,  mistakes  or  failures;  the  power  should  be  so  wielded  as  to  have  propensity  to  prevent  and  to  ensure  exclusion  of  repetition  if  committed  once  innocently  or  unwittingly.  “Pardon the error  but  not  its  repetition”.  The  power to control is not to be exercised solely by wielding a  teacher’s  cane; the members  of subordinate judiciary look  up to the High Court for the power to control to be exercised  with parent-like care and affection. The exercise of statutory  jurisdiction,  appellate  or  revisional  and  the  exercise  of  constitutional power to control and supervise the functioning  of  the  district  courts  and  courts  subordinate  thereto  empowers the High Court to formulate an opinion and place  it on record not only on the judicial working but also on the  conduct of the judicial officers.  The existence of power in  higher  echelons  of  judiciary  to  make  observations  even  extending to criticism incorporated in judicial orders cannot  be denied. However, the High Courts have to remember that  criticisms and observations touching a subordinate judicial  officer  incorporated in judicial  pronouncements  have their  own mischievous infirmities. Firstly, the judicial officer is  condemned  unheard  which  is  violative  of  principles  of  natural justice. A member of subordinate judiciary himself  dispensing justice should not be denied this minimal natural  justice  so  as  to  shield  against  being  condemned unheard.  Secondly, the harm caused by such criticism or observation  

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may be  incapable  of  being undone.  Such criticism of  the  judicial officer contained in a judgment, reportable or not, is  a pronouncement in open and therefore becomes public. The  same Judge who found himself persuaded, sitting on judicial  side, to make observations guided by the facts of a single  case  against  a  Subordinate  Judge  may,  sitting  on  administrative  side  and  apprised  of  overall  meritorious  performance  of  the  Subordinate  Judge,  may  irretrievably  regret his having made those observations on judicial side,  the harming effect whereof even he himself cannot remove  on administrative side. Thirdly, human nature being what it  is,  such  criticism  of  a  judicial  officer  contained  in  the  judgment of a higher court gives the litigating party a sense  of victory not only over his opponent but also over the Judge  who had decided the case against him. This is subversive of  judicial  authority of the deciding Judge. Fourthly,  seeking  expunging of the observations by a judicial officer by filing  an appeal or petition of his own reduces him to the status of  a  litigant  arrayed  as  a  party  before  the  High  Court  or  Supreme Court — a situation not very happy from the point  of view of the functioning of the judicial system. May be for  the  purpose  of  pleading  his  cause  he  has  to  take  the  assistance of a legal practitioner and such legal practitioner  may  be  one  practising  before  him.  Look  at  the  embarrassment  involved.  And  last  but  not  the  least,  the  possibility of a single or casual aberration of an otherwise  honest, upright and righteous Judge being caught unawares  in the net of adverse observations cannot be ruled out. Such  an incident would have a seriously demoralising effect not  only  on  him  but  also  on  his  colleagues.  If  all  this  is  avoidable why should it not be avoided?”

(emphasis supplied)

13. We  may  now revert  to  the  present  case.   Although,  the  order  of  

injunction passed by the appellant may not be legally correct or justified and  

he may have committed an error in not taking serious view of the conduct of  

the plaintiffs who had apparently concealed the factum of injunction orders  

having been passed in favour of the defendants in the suits filed by them  

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and, therefore, the Division Bench of the High Court may be fully justified  

in  setting  aside  the  order  of  injunction,  but  there  was  absolutely   no  

justification  for  the  Division  Bench  to  make  highly  disparaging  remarks  

against  the appellant  as a judicial  officer  casting doubts on his ability to  

decide the cases objectively.  The use of the words `out of sheer arrogance  

and  disrespect  to  the  lawful  order’  and  the  expression  `judicial  

authoritarianism’ in paragraph 10 shows that the Division Bench ignored the  

words of caution administered by this Court in several judgments including  

those  referred  to  hereinabove  and  castigated  the  appellant  without  any  

justification.  The observations and remarks made by the Division Bench of  

the High Court are bound to adversely affect the image of the appellant in  

the eyes of the public, his credibility as a judicial officer and also affects his  

career.  We are sure that if the Division Bench of the High Court had kept in  

view  the  judgments  of  this  Court,  it  would  not  have  made  disparaging  

remarks against the appellant, which, in the facts and circumstances of the  

case, were not at all called for.  

14. In the result, the appeal is allowed.  Paragraphs 10 and 11 of judgment  

dated  25.6.2009  of  the  Division  Bench  of  the  High  Court  as  also  the  

direction contained in paragraph 13 thereof are set aside.

………………….…….…J. [G.S. Singhvi]

……………….…………J. [C.K. Prasad]

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New Delhi May 24, 2010.

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