“I was wrong”, Gautam Patel J declares his earlier order per incuriam

“Foolish consistency is the hobgoblin of little minds”, Justice Gautam Patel of the Bombay High Court wrote in his order, while showing no hesitation in owning up to an error he made in a particular case..Declaring a previous order passed by him on January 27, 2017 as per incuriam, Justice Patel in his order stated, “I was wrong”..The issue addressed in the order of January 27 was whether the High Court on its Original Side can direct return of a plaint. Patel J. had held that a plaint could never have been returned and that a previous order of 2015 returning a plaint was per incuriam. He had taken that view on the ground that Order 49 of the Code of Civil Procedure, 1908 (CPC) excluded the application of Order VII Rule 10..“Paragraphs 3 to 9 of that order dealt with this aspect. I took the view that since Order 49 of the Code of Civil Procedure, 1908 (“CPC”) excluded the application of Order VII Rule 10, therefore, a previous order dated 19th October 2015 returning a plaint was per incurium.”.And after listing the matter yesterday at his instance (and not at the instance of the parties), he admitted that he was wrong..“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.”.The order passed yesterday clarifies that Rule 283 of Chapter XX of the Bombay High Court (Original Side) Rules specifically provide for return of the plaint..“As it happens, there is in fact a provision in the Bombay High Court (Original Side) Rules themselves specifically for return of plaint. This is Rule 283, to be found in Chapter XX entitled “proceedings at the hearings of the Suits and up to and inclusive of decree”..Admitting that he overlooked the relevant Rule, Patel J. states,.“When I delivered judgment on 27th January 2017, I did not notice this Rule. I quite overlooked it. This was an error. Therefore, that portion of my judgment that says 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 ends his order by stating that he has taken the liberty to clarify this in the same matter in which he made the mistake so that nobody else inadvertently cites his January 27 order as good law..“I believe this is preferable to waiting to make this correction in some other matter. It is perhaps one way of ensuring that the previous order of 27th January 2017 is not even inadvertently cited a good law on the question of return of the plaint….…a portion of my 27th January 2017 judgment dealt with a situation of this kind, where a decision of a single Judge was cited before me as good law although it had been specifically held not to be so by a Division Bench of this Court. .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.” .Since the suit itself was withdrawn, the clarification regarding the position in law will not have any impact on the respective rights of the parties..Read the order below. .HT to @GoanPatiala.Image taken from here.