Madhya Pradesh High Court
Bittan Bai vs State Of Madhya Pradesh And Ors. on 27 March, 2001
Equivalent citations: AIR2001MP266, 2001(4)MPHT380
Author: Dipak Misra
Bench: Dipak Misra
ORDER Dipak Misra, J.
1. In regular course of adjudicatory process the present writ petition would have been taken up for final hearing in view of the narrow compass of the controversy involved but the said exercise could not be undertaken as Mr. Khare, learned counsel appearing for the respondent No. 4 submitted that the copy of the counter affidavit filed by the respondent Nos. 1 to 3, the State Government and its functionaries, has not been served on him and at that juncture Mr. A.S. Raizada, learned Government Advocate contended the copy of the return need not be given to the counsel for the respondent No. 4 as it is not the mandate of Rule 1 ] (a) occurring in Chapter II Section Three of M.P. High Court Rules and Orders. As such a stand was taken by the learned Government Advocate it was thought apposite to hear on the said issue and accordingly the learned counsel for the parties were permitted to putforth their contentions in this regard.
2. The learned counsel for the respondent No. 4 contended that if the return filed by the respondent Nos. 1 to 3 is not supplied to him it would be well nigh impossible on his part to address the Court on merits of the case in proper perspective and the concept of hearing in its conceptual essence be a casuality and a systemic malady will corrode the rights of the parties.
Per contra, the learned Government Advocate laid emphasis on the Rule in question to buttress his contention that in absence of any requirement in the Rules the respondent Nos. 1 to 3 are not under any obligation to serve a coy of the counter affidavit on the learned counsel for the respondent No. 4.
3. To appreciate the rival submissions raised at the Bar, it is apposite to refer to Rule 11 in entirety. It reads as under :--
"11. (a) Answer to the rule nisi showing cause against such petition shall be made by the respondent by filing in the Registry a return duly supported by an affidavit and Annexure in paper book form with page numbers and index on its first page and serving a copy thereof upon the petitioner or his agent or Advocate at least two days before the date of return of the rule nisi.
(b) Where the opposite party relies upon a document or documents in his possession or power he shall file them along with his return.
(c) Where he relies on any other documents which are not in his possession or power as evidence in support of his return, he shall enter such documents in a list to be added or annexed to the return." Referring to the same it is proponed by Mr. Raizada that as per the said Rule the respondent is required to file a return duly supported by an affidavit and on complying with certain formalities he has to serve a copy thereof upon the petitioner or his agent or Advocate, but he is not required to serve the same on the co-respondents. The aforesaid submission of the learned Government Advocate has an innovative approach, a novelty in the sphere of science of interpretation and a different craftmanship in the realm of arts. True it is, the Rule only mentions serving of copy upon the petitioner or his agent or Advocate but, a piognanl one, whether this Rule should be interpreted to mean that it expressly or impliedly excludes service of copies on co-respondents.
4. It is to be borne in mind that while adjudicating a controversy the principles of natural justice have to be given top priority. The concept of natural justice has been described as 'substantial requirement of justice' by Kerl of Selborne, L.C. in Arthur John Spokmen v. The Plustood District Board of Works, (1984-85) 10 Appeal Ca 229, 240. The principles of natural justice in its ambit and sweep envelops a duty to act fairly having respect for what is right and wrong as that is the very quintessence of the process of adjudication. The principle embodied in the maxim 'qui aliquid statu earil, parte inaudita altera, auquum licet dexerit, and auquum facerit' that is to say, he who determines any matter without hearing both sides, though he may have decided right, has not done justice. It cannot be forgotten that justice should not indeed be done but manifestly seem to be done. The concept of hearing both sides clearly means to give a hearing to all the parties appearing before a Court of Law or any adjudicating authority. A hearing cannot be a mere formality. A hearing conveys the idea of giving opportunity of hearing to the parties before the Court so that they can putforth their cases. A litigant who has engaged a counsel harbours a hope that his counsel would putforth his case from all angles. If a counsel is not supplied the return filed by the co-respondent, it cannot be expected of him to putforth his case in quite completeness. A counsel can only argue with confidence when he has all the pleadings with him. In this context I may profitably refer to a decision rendered in the case of Josheph and Anr. v. Batoo Mary and Ors, (1995) 5 SCC 711, wherein the Apex Court has ruled that a person has right to be notified on any proceedings connected with the subject-matter wherein he has an interest. Thus, a counsel of a respondent cannot be kept in dark about the stand taken by the co-respondent. In a given case the respondent-State may support the stand taken by the petitioner but the private respondent may try to contradict the same and at that stage he would like to understand the exact plea putforth by the State or any other respondent. Quite apart from the above, the principle of hearing engulfs the procedure to hear one side and thereafter hear the other. This being the practice in Courts since the inception of the machinery for adjudicating adversary litigation, it is essential, nay, requisite that the pleadings are to be exchanged so that, there is no remora or difficulty on the part of any counsel to putforth his case. It is to be borne in mind that the idea of fair hearing in its connotative conceptuality embraces grant of proper opportunity to the parties and exchange of pleadings is a step towards the same. Natural justice is an inseparable and unsegregated part of administration of justice. The concept of natural justice in its changeless essence includes good conscience which, when properly understood capsules giving appropriate hearing to the parties seeking justice. A judicial approach or acting judicially also mandates that adjudging process should be done equipping the parties to address the Courts without any kind of impediment. Absence of obstacle would include to have all the documents that form the part of Court's records. In absence of exchange of pleadings the hearing in the complete sense is not achieved and in that event the goal of justice is nullified.
5. In this context I may profitably quote a line from Seneca :
"He who decides a case without hearing the other side, though he decides justly, cannot be considered just."
It is well settled in law that the rule of 'audi alterant partem' is intended to inject justice into the law and every rule has to be tested on the anvil of pragmatic realism. If a proper hearing is denied it would amount to paralysing the adjudicating process and atrophying the justice dispensation system. The maxim 'Audietur et altera pars' conveys the mandate of hearing the other side. As has been stated hearing has to be done with a sense of propriety which is in consonance with the principles of natural justice. Following the rule of principles of natural justice can never be regarded as an exercise in futility. True it is, it has its own limitations in certain sphere but when a proceeding in Court is concerned every party must have the equal opportunity to putforth his grievance subject to procedure of hearing. It cannot be forgotten that reason is the soul of law and law does injury to no one. That gives emphasis on the maxim 'Solam van tatam' - only the truth and truth can be arrived at if all the parties before the Court have been equipped with all the pleadings to address the Court. In absence of that there is hazard of arriving at half truth or no truth which the law does not countenance. Doing justice is an act of divine and divinity engulfs the principles of parity. Long back thus spoke Addison:
"There is no virtue so truly great and Godlike as justice."
6. In view of the aforesaid the basic requirement is that justice must be done and the majesty of law must be respected. On a scrutiny of the Rule in question it is apparent it is silent with regard to service of return or any other petition or documents filed by the one respondent to be served on the corespondent. A rule of this nature is in the sphere of adjective law and is a handmaid of justice. In view of such a silence the concept of 'audi altemm pattem' in its all essential signification have to be read into it and that would, in any considered opinion, include service of counter affidavit or other documents or petitions filed by a respondent on the counsel for other co-respondents. It is hereby made clear that the concerned respondent shall serve a single copy on the counsel for other respondents though he may be representing number of respondents. It is the counsel who has to be provided the copy as the purpose is to enable him to putforth the matter in proper perspective before the Court otherwise it would tantamount to anathema of justice.
7. In the result the objection raised by Mr. Raizada, learned Government Advocate, is not accepted and it is directed that he shall serve a copy of the counter affidavit on the learned counsel for the respondent No. 4 within three days.
8. It is ordered accordingly.