Judgment · High Court

HON'BLE MR. JUSTICE A.M. SAPRE HON'BLE MRS.JUSTICE NISHA GUPTA Mr. B.P. Mathur, for the appellant. Mr. Manoj Bhandari, for the respondent. BY THE COURT : (PER HON'BLE SAPRE,J.) This is an intra court appeal filed by the respondents of W.P. No.6570/2010 under Rule 134 of the Rajasthan High Court Rules against an order dated 9.9.2010 passed by Single Judge in aforementioned writ petition.

By impugned order, the learned Single Judge allowed the writ petition filed by the respondent herein and issued directions in the nature of writ for its compliance by the appellant herein (respondent of the writ petition).

So the short question that arises for consideration in this intra court appeal is whether learned Single Judge was right in allowing the writ petition?

Having heard the learned counsel for the parties and on perusal of the record of the case, we have formed an opinion that this appeal deserves to be allowed and while setting aside of the impugned order, remand the case to Writ Court for deciding the writ petition afresh on its merit in 2 accordance with law after affording an opportunity to both parties.

Since we have formed an opinion to remand the case to the Writ Court and hence we do not wish to express any opinion, on the merits and demerits of the issues arising in the case either way. It will be now for the Writ Court to decide all the issues arising in the writ petition on its merits after hearing the parties. We however record the finding only to show as to why the remand in this case is called for.

Mere perusal of the impugned order would go to show that it was passed by the Writ Court without affording an opportunity to the appellants, who is respondent in the writ petition. In other words, when the impugned order was passed, the appellant (who is respondent in the writ petition) was not heard. The very fact that appellant suffered an order adverse to them from the writ court without affording to them a right of audience in our opinion is sufficient to set aside the order. Indeed this only reminds us the memorable observations of the Supreme court made in one of its locus classic decision reported in A.I.R. 1955 SC 425 Sangram Singh vs Election Tribunal. An eminent Judge, Vivian Bose J with this distinctive style of writing made following far reaching observations while speaking for the bench.

A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leave no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it. Our Laws of 3 procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, the decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.

What ever may be the cause, though in this case we also hold the cause to be sufficient, the fact that a party to the lis suffered the order behind their back i.e. without affording them a right of hearing should be held sufficient to set aside the impugned order. We thus consider it just and proper to apply the principal of law laid down in Sangram Singh case supra to the facts of this case in letter and spirit in favour of the appellant as in our opinion, they do apply to the facts of the case on all force.

Learned Counsel for the respondent, however, contended that since the issue involved in the writ petition is covered by one of the earlier decision and hence there is no need to remand the case. We do not agree to this line of argument. In our view, It is for the appellant (as respondent of the writ petition) now to address the writ court so also for the respondent to urge as to whether the controversy is covered or not. It may be that appellant is able to persuade the writ court that it is not so covered or it may be other way round also. In either case, it is not for this court to go into this question in this appeal at this stage in the light of what we have held supra. 4

In the light of foregoing discussion, the appeal succeeds and is hereby allowed. The impugned order is set aside. The writ petition is now restored to its file. It be now decided on its merits in accordance with law after affording an opportunity to both the parties. Office is directed to list the writ petition before the Writ Court as per roaster. [NISHA GUPTA], J. [ A.M. SAPRE], J. /tarun/