‘I Believe It Is Primarily My Responsibility To Rectify It’ : Justice GS Patel Rectifies His ‘Per Incuriam’ Order By A Suo Motu Review [Read Judgment]

I should not, I think, permit anyone to even inadvertently fall prey to the mischief that I decried. Last, having realized the error, I believe it is primarily my responsibility to rectify it, the Judge said.

Justice Gautam Patel, suo motto reviewed his order he delivered in January, last year after he realized that it was an error and a particular Rule has been overlooked by him.

The Judge said: “I was wrong. It is for this reason that I have listed the matter today. It is sometimes said that a ‘foolish consistency is the hobgoblin of little minds’. That might be true. But an obstinate adherence to a demonstrably incorrect position in law, even — or, worse, especially — if that pronouncement is one’s own, is perhaps infinitely worse, for it would result in the perpetuation of wrong law”.

In his Judgment delivered on 27th January 2017, Justice Patel held that a plaint could never have been returned and that a previous order doing so is per incuriam is incorrect and not good law. Later, the Judge realized that there is, in fact, a provision in the Bombay High Court (Original Side) Rules themselves specifically for return of plaint.

“I did not notice this Rule. I quite overlooked it. This was an error. Therefore, that portion of my judgment that a  plaint could never have been returned and that a previous order doing so is per incuriam is incorrect and not good law... Indeed, my decision is itself per incuriam on this aspect of the matter (return of a plaint), and for that very reason.”, he said.

The Judge also said that, by this suo motu review, he wanted to ensure that his previous order is not even inadvertently cited a good law on the question of return of the plaint. “I should not, I think, permit anyone to even inadvertently fall prey to the mischief that I decried. Last, having realized the error, I believe it is primarily my responsibility to rectify it.”, he said.