No Order Be Passed Without Examining Lawfulness Of 'Minutes Of Order' Filed By Advocates : Supreme Court To Bombay High Court

The Supreme Court, in a recent judgment, commented about the peculiar practice of advocates filing "Minutes of Order" in the Bombay High Court. "Minutes of Order" are notes filed by advocates on both sides which mention the points which are to be included in the judgment to be passed by the Court.

While this practice is to assist the judges, the Supreme Court cautioned that care should be taken to ensure that the rights of the third parties are not affected by passing orders based on the "Minutes of Order". Further, the High Court must apply its mind to the "Minutes of Order" to ensure that the order proposed to be passed is lawful.

A bench comprising Justices Abhay S Oka and Ujjal Bhuyan made the following observations regarding this practice :

a) The practice of filing “Minutes of Order” prevails in the Bombay High Court. As a courtesy to the Court, the advocates appearing for the parties to the proceedings tender “Minutes of Order” containing what could be recorded by the Court in its order. The object is to assist the Court;

b) An order passed in terms of the “Minutes of Order” tendered on record by the advocates representing the parties to the proceedings is not a consent order. It is an order in invitum for all purposes;

c) Before tendering the “Minutes of Order” to the Court, the advocates must consider whether an order, if passed by the Court in terms of the “Minutes of Order,” would be lawful. After “Minutes of Order” is tendered before the Court, it is the duty of the Court to decide whether an order passed in terms of the “Minutes of Order” would be lawful. The Court must apply its mind whether the parties who are likely to be affected by an order in terms of the “Minutes of Order” have been impleaded to the proceedings;

 d) If the Court is of the view that an order made in terms of the “Minutes of Order” tendered by the advocates will not be lawful, the Court should decline to pass an order in terms of the “Minutes of Order”; and

e) If the Court finds that all the parties likely to be affected by an order in terms of the “Minutes of Order” are not parties to the proceedings, the Court will be well advised to defer passing of the order till all the necessary parties are impleaded to the proceedings.

In this case, the Bombay High Court permitted the construction of a compound wall under police protection, relying on "Minutes of Order" presented by advocates. The appellants opposed this decision, claiming that it overlooked objections from government officers and failed to involve affected parties. Despite these objections, the Division Bench upheld the order without providing reasons, leading to the appeal.

The Supreme Court found the High Court's order illegal, remanding the matter while allowing the construction under police protection subject to the final decision in the Writ Petition.

Case : Ajay Ishwar Ghute & Ors. v. Meher K. Patel & Ors.

Citation : 2024 LiveLaw (SC) 335

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