Y.B. Suryavanshi, J.
1. The petitioner Dr. Sharda, a medical practitioner, who has appeared as a witness in the Court of Shri Mohit Kumar Vyas, IInd Additional Judge to the Court of District Judge, Indore, in proceedings under Order 9, Rule 13, C.P.C., in Misc. Civil Case No. 6/88, has filed this petition under Articles 226/227 of the Constitution of India for expunging derogatory remarks passed in the order dated 7-2-1989.
2. At the outset, we want to make it clear that we are not concerned at all, with the merits or demerits of the orders aforesaid and the controversy is cribbed and confined to the limited question-- 'Whether the learned Court was justified in making the impugned remarks; and if the answer is in the negative, to what extent the objectionable portions be expunged?' Any incidental observations by us, if any, be not construed as any expression of an opinion on the proceedings in Misc. Civil Case No. 6 of 1988.
3. The backdrop: Broadly stated, the non-applicants in Misc. Civil Case No. 6/88 had filed a suit for eviction, arrears of rent and possession against the applicant Prithipal-singh. The original Civil Suit was 67A/86, which was decreed ex parte on account of Prithipalsingh's absence on 24-9-88 and his counsel pleading no instructions. This occasioned application under Order 9, Rule 13, C.P.C., in which the applicant alleged that prior to 24-9-88, he had gone to Delhi on a professional visit but fell ill, and was unable to undertake journey. In Delhi, he had taken treatment from one Dr. Gurmani; and thereafter, he undertook the journey back to Indore on 25-9-88 but again fell ill. Therefore, he went to Dr. Sharda at his reference, showed him the earlier prescription and the applicant advised further treatment. Thus, the advice on 26-9-88 for rest and treatmentwere subsequent to the treatment Prithipal-singh had in Delhi from Dr. Gurmani on23/24-9-88.
4. According to the petitioner, he is a medical practitioner by profession and has a clinic in rented premises in Film Colony. Indore but his residence is different. According to copy of his deposition (Ann.-P2), he resides in Usha Nagar Extension Colony, Indore and as Prithipalslgh's business premises are adjacent to that of the petitioner's clinic, at about 3 or 4 p.m., Prithipalsingh called on the petitioner at his residence. Admittedly the petititoner and Prithipalsingh have a common landlord and the relations of both these tenants with their common landlord are strained.
5. The learned Judge, while passing the orders (Annexure-P3) dated 4-2-1989 (7-2-89 -- ??), has discussed the petitioner's evidentiary aspects in paras 21 to 23 and, to be precise, in para 23 observed :--
^^MkW- ds- th- 'kkjnk v- lk&3 us byktds lEcU/k esa jftLVj ,oa vfHkys[k u j[kus vkSj mldh vko';drk u le>us dk dFku]vFkkZr voS/kkfudrk laca/kh lF; ftl fufHkZdrk vkSj Li'Vokfnrk ls U;k;ky; dsle{k fn;] mlls Li'V gS fd og vius nq'eu izkFkhZ izfroknh dks voS/kkfud R;esa enn djus ds fy;s gh vlR; dFku djus dks mifLFkr gqvkA fuf'pr gh ,d iathrfpfdRld ls ;g vis{kk ugha dh tkrhA ;fn bl izdkj ds fpfdRld ds dFkuksa ij fo'okldj fy;k tk;s rks ,sls fpfdRld oS/kkfud izf;k dk nq:i;ksx djus okys O;fDR;ksadks ges'kk lgk;d gksxsA fuf'pr gh MkW- ds- th- 'kkjnk dk mDr vkpj.k HkRlZuk ;ksX;gSA vr% mldh cM+h HkRlZuk dh tkrh gSA**
6. According to the learned counsel for the petitioner, Shri K.K. Shrivastava, an entry or non-entry in the professional register by itself is not determinant whether the petitioner treated or not Prithipalsingh, because according to the petitioner, his place of practice is at the clinic and he rarely meets his clients at residence. Prithipalsingh having his business premises adjacent to his clinic, met him at residence, which was exceptional. Further submission is, that without show-cause notice or without calling for an explanation from the petitioner, such carping remarks condemning his professional conduct were uncalled for and deserve to beexpugned. It is urged that as per Registration Certificate dated 14-2-77 (Ann.-Pl), he is B.A.M.S. from Vikram University, and is practising in Ayurvedic. Unani and Naturop-pathy systems, as recognised by the concerned Board. He also practices Yoga and those indiscreet and derogatory remarks have adversely affected his professional practice and reputation. Pausing here, a passing reference may be made to Kishorilal v. M. C. Sakti (1988 Jab LJ 393 para 24 at page 403): (AIR 1988 MP 31 at p. 38) and Rashmi Parihar v. G. Bandil, 1988 Jab U 427, para 13B at p. 437 which have been cited for the proposition, that principles of justice demand that nobody should be condemned unheard and behind his back.' It seems that Jagdishlal Dhody v. State of M.P., 1987 Jab LJ 353 : (AIR 1988 Madh Pra 4) is on powers of the Court under Article 227 of the Constitution of India. We refer those decisions since they were cited, but they do not call for further discussion.
7. As per practice and precedents, in petitions under Articles 226/227 of the Constitution of India, the Court/Tribunal concerned is made a party and is formally noticed. But in the instant case, the letter received from the concerned learned Judge addressed to the Additional Registrar indicates that since a show cause notice was received by name (though the observations pertained to discharge of his judicial functions) he sought guidance and had requested the District Judge to avail the services of Government Pleader etc. In our view, there is no question of the learned Judge being represented by a counsel in such cases. This Court has to decide whether the impugned remarks in discharge of judicial functions were justified or uncalled for
8. While evaluating evidence, the Court has to give reasons for believing or disbelieving witnesses and, therefore, discussion and evaluation are intrinsic parts of an order or judgment. Their Lordships of the Supreme Court in State of U.P. v. Mohammad Naim, AIR 1964 SC 703, observed (Para 10) :--
'If there is one principle of cardinal importance in the administration of justice, itis this : the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this Court. At the same time, it is equally necessary that in expressing their opinions, Judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities, whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider--(a) whether the party whose conduct is in question is before the Court, or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an intergral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.'
In Panchanan Banerji v. Upendra Nath Bhattacharji, AIR 1927 All 193, Sulaiman, J., held :--
'The High Court, as the Supreme Court of revision, must be deemed to have power to see that Courts below do not unjustly and without any lawful execuse, take away the character of a party or of a witness or of a counsel before it.'
Both the above decisions have been referred in Niranjan Patnaik v. Sashibhusan Kar, (1986) 2 SCC 569 : (AIR 1986 SC 819). The peculiar feature of that case was that it was not an appeal against conviction or acquittal but one preferred by prosecution witness for expunction of several highly derogatory remarks made against him by the High Court while deciding the appeal. The appellant had become a Cabinet Minster; on account of disparaging remarks, the appellant tendered his resignation and demitted office formaintaining democratic traditions. In that context, it was held that harsh or disparaging remarks are not to be made against persons and authorities, whose conduct comes into consideration before Courts of law unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct. It was further observed 'that having regard to the limited controversy in the appeal to the High Court and the hearsay nature of evidence of the appellant, it was not at all necessary for the appellate Judge to have any comments on the conduct of the appellant. Even assuming that a serious evaluation of the evidence of the appellant was really called for in the appeal, the remarks of the learned Appellate Judge should be in conformity with the settled practice of Courts to observe sobriety, moderation and reserve'. We are reminded that the higher the forum and the greater the powers, the greater the need for restraint and the more mellowed the reproach should be'.
In R.K. Lakshamanan v. A.K. Shri-vastava, AIR 1975 SC 1741, the question was about the expunction of remarks against the District Magistrate. In that case, the decision in Mohammad Naim's case (AIR 1964 SC 703) (supra) was followed as the tests to be applied in considering the expunction of disparaging remarks. In that case, the respondent/Advocate 'had filed a petition before the High Court praying that the D.M. be directed to withdraw a notice issued to the respondent as it was arbitrary and amounted to an abuse of the process of the Court because there was no such provisions in the Code of Criminal Procedure empowering the Magistrate to issue such a notice commanding Advocate's appearance when he was not connected with the proceedings before him as the notice was issued to him only to humiliate him in particular, and the Bar in general, since the latter had passed a resolution against the improper and discourteous treatment meted out by the District Magistrate to the members of the Bar. After taking into consideration the appellant's report regarding the allegations contained in the petitioner, the High Court quashed the notice and further held 'that-the action of the Magistrate in issuing theimpugned notice to the petitioner consituted grave misuse of his power and flagrant abuse of the process of the Court.' But their Lordships, in view of the aforesaid tests, rejected the application for expunction; since the appellant/D.M. was represented before the High Court by a senior Public Prosecutor, the appellant had adequate opportunity of explaining his conduct and defend the impugned action. On those facts, it was held that there cannot be any complaint that the order was passed by the High Court without affording him (D.M.) due opportunity to explain and defend his action. There was evidence on record bearing on the conduct of the D.M., to which the remarks pertained. They were not considered to be irrelevant or alien to the subject matter of the case or foreign to the matter in issue/ They were inextricably interwined.
In a recent judgment in Civil Appeal No. 1537/90 (A. M. Mathur v. Shri Pramod Kumar Gupta) decided on 22-3-90 (reported in AIR 1990 SC 1737). Their Lordships of the Supreme Court observed that (at p. 1741):--
'Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. Therduty of restraint, this humility of function should be a 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..... The Judges have the absolute and unchallengeable control of the Court domain. But they cannot misuse their authority by intemperate comments, indignified banter or scathing criticism of counsel, parties or witnesses. We concede that the Court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities, whose conduct comes into consideration unless it is to animadvert on their conduct.'
The disparaging remarks in the above case were accordingly ordered to be expugned.
8A. In the instant case, we find that the petitioner was asked about the certificate of his qualifications as also his registration and whether he had brought those documents. An expert appearing as a witness in a Court is not always expected to carry them with him like a driving licence carried by a driver. According to Section 138 of the Evidence Act, examination and cross-examination should confine to relevant facts and under Section 146 thereof, a witness can be asked any question to test his veracity as to who he is and his station in life or to shake his credit'. Other relevant sections are Section 148, etc. In the judicial process, a Judge has to do adjudication and give reasons therefor. Since the matter before us is very limited in scope, it would suffice to state that the evidence of the petitioner seems to have been discussed in paras 21, 22 and 23. We are not concerned with other findings or reasons for findings except a line in para 22 of the order, wherein the learned Judge observed that in his examination, the witness stated that there is registration of the establishment, which has not been produced. If that was necessary, the Court could have asked him to produce it. We are also not concerned about various other facts discussed in paragraphs 21, and 22 of the order Annexure-P3. In fact, paragraphs 21 and 22 were full complete in themselves, as regards discussion of the petitioner's evidence and the views expressed by the learned Judge.
9. It is para 23, the extract of which has been referred in our order earlier. The language ^^nq'eu ds nq'eu** appears to have been borrowed from the Ramayan serial on T. V. and in a judicial order it could have been couched in a more judicious manner by saying that the witness is highly interested because of being on inimical terms with the landlord and/or friendly terms with Prithipalsingh, instead of using the language, which the learned Judge did. But then, Prithipalsingh had met the petitioner for treatment at his residence and not at the clinic and that is why the petitioner, as a witness, has explained that at his residence, he does not keep the Register of Patients because rarely such an occasion arises. Therefore, the impugned language and the the manner, it has been written, seems tobe a carping criticism and damaging remarks in fact condemnation of the profession conduct of the petitioner which deserves to be expunged. Even in ordinary paralance, a discreet person, instead of sayinig 'non sense' to.another, could very well say the same thing by the expression that 'It does not appeal to my sense'. The question was just believing or disbelieving the statement of the petitioner and all those reasons have already been discussed by the learned Judge in paragraphs 21 and 22 of his orderdated 4-2-89 (However, at the end of the order, the order seems to have been passed on 7-2-89 and we had no occasion to see the original).
10. In view of the aforesaid facts and the law stated above, we find that as the discussion of evidence was full and complete in paragraphs 21 and 22 of the impugned order, the learned Judge in para 23 unnecessarily and injustly magnified the matter by making caustic comments and disparaging remarks on the professional conduct of the witness/ petitioner and accordingly, this petition deserves to be allowed.
11. Consequently, this petition is allowed. We direct the derogatory remarks contained in para 23 of the impugned order as extracted in para 5 of this order in Hindi, to stand expunged from the order passed by the learned II Additional Judge to the Court of District Judge, Indore in Misc. Civil Case No. 6/88.