Karnataka High Court
Lalbi W/O Moinuddin vs Modinamma @ Modinbee D/O Mohd @ ... on 2 August, 2012
Author: Dilip B. Bhosale
Bench: Dilip B. Bhosale, L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA
DATED THIS THE 02ND DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR.JUSTICE DILIP B. BHOSALE
AND
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
WRIT APPEAL NO.50337/2012(S-RES)
BETWEEN
Lalbi W/o Moinuddin
Age about 42 years,
Occ: Angunwadi Helper,
R/o Uppar Nandihal,
Tq: Lingasugur, Dist: Raichur-584 122.
...Appellant
(By Sri: Ashok S. Kinagi, Adv.)
AND
1. Modinamma @ Modinbee
D/o Mohd. Rafi @ Mruthujasab,
Age About 25 years,
Occ: Anganwadi Helper,
R/o Uppar Nandihal,
Tq: Lingasugur, Dist: Raichur-584 122.
2. The State of Karnataka
Represented by Deputy Director,
Women and Child Director,
Raihcur-584 101.
2
3. The Child Development Authority
And Selection of Anganwadi
Karyakarte, Lingasugur,
Dist: Raichur-584 122.
4. The Tahsildar
Lingasugur,
Dist: Raichur-584 122.
.... Respondents
(By Sri. Gururaj Rao Kakkeri &
Sri Ganesh Naik, Advs. for C/R1
Sri. Manvendra Reddy, AGA for R3,
R2 & R4 sserved)
This Writ Appeal is filed U/S. 4 of the Karnataka High
Court Act, praying to set aside the order 14-03-2012 passed
by the Single Judge in the Writ Petition No.83129/2011 (S-
RES).
This Writ Appeal coming on for preliminary hearing
this day, DILIP B. BHOSALE J., delivered the following:
(ORAL JUDGMENT) DILIP B. BHOSALE J.
This writ appeal is directed against the order dated 14.03.2012 passed by the learned Single Judge in W.P. No.83129/2011 (S-RES) whereby, the writ petition filed by respondent No.1 - petitioner was finally allowed. The writ petition was preferred by respondent No.1, challenging her removal from service as Anganwadi 3 Worker and appointing respondent No.3 i.e., the appellant in the present writ appeal, to the said post by the Tahsildar, Lingasugur.
2. In the writ petition, on 26.09.2011, an "emergent notice" was issued to the appellant. The order dated 26.09.2011 reads thus:
"Learned counsel for the petitioner seeks permission of this Court to implead the Tahsildar, Lingasugur Taluk, Raichur District as Respondent No.4.
Permission is granted. He may implead the Tahsildar as Respondent No.4.
Learned AGA is directed to take notice for R1, R2 & R4.
Issue emergent notice to R-3."
3. Thereafter, the writ petition was placed before the learned Single Judge on 05.03.2012 and 06.03.2012. On 05.03.2012, none appeared for the petitioner and on 06.03.2012, none appeared for the parties. The order sheet shows, on 07.03.2012, an 4 endorsement was made by the Court Officer to list the petition on 08.03.2012 as directed by the Court. On 08.03.2012, it was directed to be placed on Board on 12.03.2012. On 12.03.2012, once again an endorsement was made by the Court Officer to call the petition on 14.03.2012. On 14.03.2012, the learned Judge, after having noticed that respondent No.3 i.e., the appellant, was served, heard learned counsel for the petitioner and learned HCGP for respondent Nos.1, 2 and 4, and allowed the writ petition finally. Admittedly, the appellant-respondent No.3, though was served did not enter her appearance, either in person or through an advocate.
4. Before we proceed further, it would be relevant to notice few facts. Respondent No.1 herein was appointed to the post of Anganwadi Worker of Uppar Nandihal Village, based on residential certificate issued by the Tahsildar. Subsequently, the Tahsildar 5 on the basis of report of Revenue Inspector, passed an order dated 13.05.2011 canceling the residential certificate issued to respondent No.1. Then, the appellant was recommended to be appointed on the said post, who had married a person from Uppar Nandihal Village and was residing there for about five years. The said order was passed without hearing respondent No.1. It is against this backdrop, the learned Single Judge finally decided/allowed the writ petition, wherein substantive rights of the parties were involved, by making the following observations in paragraphs 4 to 8.
"4. Based on the residential certificate issued by fourth respondent herein, petitioner is appointed for the post of Anganwadi Worker of Uppar Nandihal Village. It is seen that vide Annexure- "K", the Child Development Authority has cancelled the appointment of petitioner and appointed third respondent to said post based on the order of fourth respondent, which is produced today as R-1 and the said R-1 is passed pursuant to R-3.
5. On going through the pleadings and documents produced by the petitioner and also the documents produced by learned 6 Government Pleader, it is seen that the petitioner herein is also resident of Uppar Nandihal Village for past 5-6 years after having left her husband, she has been residing in the said village along with her three minor daughters and the residential certificate, which is given to her vide Annexure-"D" is cancelled by fourth respondent, without giving sufficient opportunity to her to demonstrate that she has secured the said certificate by giving false declaration.
6. In that view of the matter, order passed by fourth respondent vide Annexure- R.1 is without basis and contrary to the records produced at R-3, where there is clear admission that the petitioner is resident of Uppar Nandihal Village for a period of 5t6 years prior to issue of Annexure - "D'.
7. In that view of the matter, order passed by fourth respondent vide Annexure - "K" removing the petitioner from service as Anganawadi Worker and appointing third respondent to the said post is without basis and the same is required to be set aside.
8. Accordingly, writ petition is allowed. Order passed vide Annexure - "K" is quashed and consequently fourth respondent is directed to reinstate the petitioner herein to the post, which she was holding prior to passing of Annexure - "K" pursuant to residential certificate issued vide Annexure - "D"7
5. We have heard learned counsel for the parties and with their assistance, gone through the entire record including the order sheet of the writ petition. At the outset, learned counsel appearing for the appellant submitted that the order passed by the learned Single Judge deserves to be set aside solely on the ground that it is an ex-parte order. She submitted, though it is true, that the appellant was served in the writ petition, for some personal reasons, she could not remain present on the date of hearing, and in view thereof, the learned Single Judge ought to have, at the most, issued rule nisi. In other words, the petition ought not to have been disposed of finally in terms of the final relief sought in the petition. She submitted that it is not permissible under the rules to dispose of a writ petition in favour of the petitioner in the absence of contesting respondent, if notice was issued only to show cause why rule nisi be not issued, without indicating that the petition itself may be/will be heard 8 and disposed of finally at the stage of admission. In support of this contention, she invited our attention to the Writ proceedings Rules, 1977 and so also to the High Court of Karnataka Act and Rules. She submitted that on the basis of the order 'issue emergent notice' to respondent No.3, it cannot be stated that the respondent had sufficient notice that the petition filed, challenging her appointment, would be heard and decided finally at the stage of admission. Lastly, she submitted that on this ground alone, the appeal deserves to be allowed and it may be remanded for hearing afresh before learned Single Judge.
6. On the other hand, Mr. Ganesh Naik, learned counsel appearing for respondent No.1 and so also the Government Advocate submitted that having regard to the practice of this Court, the writ petition was listed in 'B' Group and therefore, it was open to the learned Single Judge to decide the petition finally, if the 9 respondent chose to remain absent even after service of notice. Our attention was also invited to Form III-A, which is a format of notice to be issued under Rule 13(a) proviso, to contend that the notice served on the respondent made it clear that the petition will be dealt with, heard and decided on merits in the absence of respondent if she fails to appear on the said date or any subsequent date to which, the matter may be posted as directed by the Court.
7. In view of the submissions advanced by learned counsel appearing for the parties, we have, with the assistance of the learned counsel for the parties, formulated the following questions for our determination:
1) Whether the learned Single Judge was right is disposing of the writ petition finally at the stage of admission in the absence of the appellant, who was respondent No.3 in the petition, though was served with the notice contemplated by the first proviso to clause (a) of Rule 13 of the Writ 10 Proceedings Rules, 1977 without indicating in the order, issuing notice, that the petition may be/will be heard and disposed of finally at the stage of admission?
2) Whether the Court can allow the writ petition finally before issuance of rule nisi in the absence of the contesting respondent, if the respondent chooses not to enter his appearance even after service of notice in Form II-A or III A of the Rules, on the date of hearing to show cause, why the rule nisi should not be issued?
3) Whether the Court can allow the writ petition finally dispensing with issuance of rule nisi in the absence of the contesting respondent, who chooses not to appear at the stage of hearing on the notice to show cause why rule nisi should not be issued, particularly when he has no notice of hearing of the petition finally at that stage?
8. In the present case, we are not examining merits of the case, though it was possible to do so by examining whether "useless formality theory" could be pressed into service and /or whether any prejudice has been caused to the appellant. It is true that unless 11 failure of justice is occasioned this Court, in writ appeals, may be justified in refusing to grant relief to such appellant, i.e., the respondent in the writ petition, who chooses not to enter his appearance at the stage of admission of the writ petition irrespective of the fact whether he was apprised determinatively that the petition itself will/may be heard and disposed of finally.
9. During last six months, one of us (Dilip B. Bhosale, J.) has come across the situations, as has been brought to our notice in this case, and therefore, we felt it necessary to have a close look at the relevant rules and the High Court Rules to find out whether a writ petition in such circumstances, could be disposed of and whether that would amount to violation of principles of natural justice. Since a point of procedure has been raised by learned counsel for the appellant, which concerns the conduct of writ petitions in this Court, we have decided not to enter into merits of the 12 case at all, and to examine what is the correct procedure, contemplated by the Rules, the Courts should follow.
10. Since a point of procedure, has been involved, we have also heard Sri.S.P.Shankar and Sri P.S.Rajagopal, learned senior advocates and Sri K.M. Nataraj, learned Addl. Advocate General (AAG) who were present in the Court in some other matters. Learned AAG invited our attention to the following Judgments:
HIMANSU KUMAR BOSE v. JYOTI PROKASH MITTER AIR 1964 SC 1636; SHIVASHARANAPPA VEERABHADRAPPA & OTHERS v. ASST.
COMMISSIONER & RETURNING OFFICER, BIDAR & OTHERS 1978 (1) Kar.L.J. 51 and in B. U. DALU v.
STATE OF KARNATAKA 1989 (2) Kar.L.J. 237. He submitted that while issuing notice, if it is not made clear in the order issuing notice, that the petition itself will be heard on merits and disposed of finally, it would 13 not be proper to dispose of the petition finally in the absence of respondent/s. He submitted that, as a matter of fact, if the notice is issued and if the petition cannot be disposed of, by making quick assessment of the issue involved, it would be more appropriate to issue rule and adjourn the petition for its final hearing. Sri S.P.Shankar and Sri P.S.Rajagopal, learned senior advocates also made submissions in support of the submissions made by learned AAG. In addition, it was submitted that this Court should make it clear as to what procedure is contemplated by the Rules and what procedure the Court should follow while dealing with writ petitions.
11. Before we proceed further, we would like to have a close look at the rules regulating the writ proceedings under articles 226 and 227 of the Constitution of India. By virtue of articles 226 and 227 of the Constitution of India and all other powers 14 thereunto enabling and in supersession of the existing rules, the High Court of Karnataka made the rules to regulate the writ proceedings, called the Writ Proceedings Rules, 1977 (for short "the Rules").
12. We are not concern with all the rules in the Rules, and therefore, we would like to make reference to only relevant rules. Rule 2, requires every petition under Article 226 and or Article 227 of the Constitution shall be designated as "writ petition" and it should be in Form No.1 appended to the Rules. Insofar as rule 13 is concerned, it would be advantages to reproduce it for better appreciation of the questions raised. Rule13 reads thus:
"13. Upon the hearing,-
(a) the Court if satisfied, shall direct a rule nisi to the respondent calling upon him to show cause why the order sought should not be made, and shall adjourn the hearing for the respondent to appear and for being heard:
(i) Provided that, where the Court deems fit, it may before directing issue of a rule 15 nisi, direct notice to the respondent to show cause why rule nisi should not be issued;
(ii) Provided, further, that when a notice is issued to show cause why rule nisi should not be issued, the Court may direct the respondent to file objection and documents, if any, in accordance with Rule 21.
(b) In the event of a direction in accordance with proviso (ii) the issue of rule nisi may be dispensed with and the matter may be heard and disposed of on merits."
This rule was substituted by notification dated 29.08.1990 and was brought into force with effect from 13.09.1990.
13. A bare perusal of Rule 13 of the Rules, would show that the Court at the inception, even without issuing notice to the respondent, if satisfied, can direct a rule nisi to the respondent calling upon him to show cause, why the final relief sought in the petition should not be granted, and adjourn the hearing for the respondent to appear and for being heard or to dismiss 16 the petition at the threshold. The first proviso to clause
(a) of Rule 13 empowers the Court, if it deems fit, before directing issue of rule nisi, direct notice to the respondent to show cause why rule nisi should not be issued, and in that event, as provided for in the second proviso, the Court may direct the respondent to file objection and documents, if any, in accordance with Rule 21. In this eventuality, issuance of rule nisi, as provided for in clause (b) of Rule 13, 'may be dispensed with' and the matter 'may be heard and disposed of' on merits.
14. The order, directing the respondent, as per the second proviso, to file objection and documents, if any, in accordance with Rule 21 could be passed, only when the respondent enters his appearance in response to the notice to show cause why rule nisi should not be issued. If the Court finds disposal of writ petition is not possible within short time or requires hearing, it may 17 issue rule or grant further time to the respondent to place his defence on record, making the intention clear in the order to dispose of the petition finally.
15. The word 'may' in the first proviso; the expression 'may direct' in the second proviso; and the expressions 'may be dispensed with' and 'may be heard and disposed of on merits' in Clause (b) of Rule 13, clearly show/indicate that a discretion is vested in the Court to either hear and dispose of the petition, even without issuing rule nisi or to issue rule nisi and adjourn the petition for hearing. The order "issue notice to show cause why rule nisi, should not be issued, is obviously with an intention of hearing the other side even on the question of issue of rule nisi and so also for ascertaining whether the petition can be disposed of at the stage of admission itself, if a quick assessment of the dispute can be made. If the Court desires to follow this procedure, it is 18 permissible in order to save time, expenditure and above all, disposal without delay. But, whether Court can do so if the respondent chooses not to appear at all after service of notice is the question.
16. Rule 21 of the rules provides the procedure to be followed after issuance of rule nisi. The same procedure require to be followed, as contemplated by the second proviso to Clause (a) of Rule 13, if the Court desires to hear the petition finally dispensing with the issuance of rule nisi.
17. Rule 21 of the Rules reads thus:
21. (1) Answer if any to the rule nisi showing cause against such petition shall be made by filling into Court objections supported by an affidavit within fourteen days after the expiry of the time fixed for appearance or such earlier time as the Court may direct, and reply to the objections supported by an affidavit, may be filed by the petitioner within one week of service of a copy of the objections on him or such earlier time as the Court may direct. The reply shall not raise any new ground in support of the writ petition.19
(2) Copies of the objections or reply shall be served on the opposite partly or parties or their Advocates and the objections of reply shall not be received unless they contain an endorsement of service signed by such party or parties or their Advocates.
(3) No further statement or affidavit shall be filed by any party except with the leave of the Court.
18. Thus, the procedure contemplated by Rule Nos.13 and 21, make it clear that for disposing of the petition finally at the stage of admission, dispensing with the issue of rule nisi and hearing of the petition after the issue of rule nisi is same. In other words, for disposing of the petition finally with or without issuing rule nisi, it is necessary to allow the respondent to file objection and documents, if any, in accordance with Rule 21. However, in the absence of the respondent, who chooses not to appear at all on receipt of the notice to show cause, why the rule nisi should not be issued, in our opinion, the petition cannot be disposed of in the 20 manner it is provided for by the second proviso to clause (a) and clause (b) of Rule 13 read with Rule 21 of the Rules. This, of course, does not mean that the respondent having appeared in the case chooses either not to file objection and documents, despite the time being given, or to remain absent on subsequent dates, the Court 'may' proceed to decide the petition finally in his absence, if such an intention was made clear, recording it in the order, and if a quick assessment of the dispute can be made or to issue rule nisi and grant/confirm the interim relief and adjourn the hearing of the writ petition for final disposal. In short, it is necessary that if the respondent appears before the Court, on receipt of the notice as per the first proviso to clause (a) of Rule 13, and if the Court intend to dispense with the issuance of rule nisi and decide the petition finally, it may do so by making it so clear to the parties on the first date itself, and record it in the order. 21
19. In support of this view, we would also like to consider Rule 17 of the Rules. Rule 17 reads thus:
"17. (1) The notice to be issued to the respondent/s upon the making of the order of rule nisi shall be in Form IV of these Rules. The copy of the rule nisi granted together with copies of the petition, the affidavit in support thereof and annexures there shall be served on the respondent/s, if not already served by the petitioner or his Advocate.
(2) .............................."
This Rule requires, the notice to be issued to the respondent upon making of the order of rule nisi in Form No.IV of the Rules. It further requires the copy of the rule nisi granted together with copies of the petition, the affidavit in support thereof and annexures, to be served on the respondent," if not already served by the petitioner or his advocate". The language of sub Rule 1 of Rule 17 clearly indicates that there are two stages of service of notice to the respondent upon the making of the order of rule nisi in Form IV of the Rules. 22 Firstly, when rule nisi is issued by the Court at the very inception as per Clause (a) of Rule 13 and, secondly, if notice is issued to show cause why the rule nisi should not be issued, and after the notice, instead of deciding the petition finally, if the Court issues rule nisi. Of course, to avoid fresh service of notice in Form No.IV of the Rules after the rule nisi is issued, the Court can ask the advocate/s appearing for the respondent/s at that stage, whether he/they would like to waive notice on behalf of the respondents for whom they appeared and record it in the order. Similarly, the advocate appearing for the respondent/s on his own, on issue of rule, can waive notice on behalf of the respondent so as to avoid service of notice afresh in terms of Rule 17 of the Rules, which Court should record in the order. In that event, the issuance of fresh notice would not be necessary. This is necessary because in a given case, the counsel appearing for the respondents may have instructions to appear only at the stage of admission of the petition. 23
20. In this connection, we would like to make reference to sub-rule (2) of rule 12 and rule 12-A in Chapter VIII of the High Court Rules, which require the petitioner, along with the memo for service of notice, should file into Court as many plain paper copies as there are respondents to be served, of the petition, affidavit filed in support of it and of all the annexures thereto. Rule 17, however, provides that if these documents were already served, obviously when the notice as per the first proviso to Clause(a) of Rule 13 was issued, the petitioner need not serve them again on the respondents.
21. The words 'rule nisi' and the 'Rule absolute' are frequently used by the High Courts every day in the writ jurisdiction. The Court by issuing a 'rule nisi' to the respondent, calls upon him to show cause why the order sought in the writ petition should not be made. After hearing, the Court may discharge the rule if it is 24 inclined to reject the writ petition. If, on the other hand, the rule is made absolute, means the judgment/order is passed in terms of the order sought.
22. From the language employed in Rule 13, it is clear that in any event, if the petition is to be disposed of finally, may be after or before issuance of the rule nisi, the respondent should to have to have a notice that the petition may be/will be heard and disposed of finally. In other words, if the notice is issued to show cause why rule nisi should not be issued without indicating, in the order issuing notice, that the petition may be/will be heard and disposed of on the returnable date, it would not be proper to allow the writ petition finally, if the respondent chooses not to appear on receipt of such notice. If the petition, in such a situation, is disposed of finally, the order will be exparte order. This procedure needs to be scrupulously 25 followed, as there is a danger of principles of natural justice being violated.
23. Natural justice is another name for commonsense justice. Rules of natural justice are not codified canons. But they are principles enshrined in the Constitution of India and ingrained into conscience of man. The adherence to principles of natural justice is of supreme importance. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle and therefore, it must be "precise and unambiguous." It should clearly apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so at to enable him to meet the case against him. In the absence of an unambiguous and precise notice, perhaps the order in a given case would become wholly vitiated. 26 Thus, it is essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principle of natural justice. (See Canara Bank v. Debaris Das [(2003) 4 SCC 557).
24. In this connection, it would be relevant to refer to the observations made by the Supreme Court in paragraphs 11 and 14 of the judgment in CANARA BANK v. V.K. AWASTHY [(2005) 6 SCC 321].
"11. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
14. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and 27 what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. ........................"
25. We would also like to quote as an example to emphasis that strict adherence of the Rules is necessary. In a given case, the respondent after having received the notice to show cause why rule nisi should not be issued may choose not to appear at the stage of admission and may decide to appear only if the rule nisi is issued/the petition is admitted. Therefore, unless it is made clear, while issuing notice in terms of the first proviso to clause (a) of Rule 13 that the petition may be heard and disposed of finally by judicial order, it would not be proper for the Court to decide the petition finally, where the respondent chooses not to appear on receipt of the notice to show cause why rule nisi should not be issued. In our opinion, the following orders, by way of illustrations, may take care of this situation and would 28 enable the Courts to dispose of writ petition on merits finally on service of notice to show cause why Rule nisi should not be issued.
1) Issue notice to the respondent.
Notice to indicate that the petition may be/will be heard on merits and disposed of finally at the stage of admission.
2) Issue emergent notice to the respondent.
Notice to indicate that the petition will be heard on merits and disposed of finally at the stage of admission.
26. The Courts are not remediless. However, without indicating in the order issuing notice, the intention to dispose of petition finally, in our opinion, it should not be disposed of on merits finally in the absence of the respondent, who chooses not to appear 29 at all on receipt of the notice to show cause, why rule nisi should not be issued.
27. The object is to make him aware that the petition filed against him will be/may be heard and disposed of finally in terms of the order sought in the petition. After having made it so clear, if still the respondent chooses not to appear, the petition can be heard and disposed of finally on merits in his absence and in such eventuality, the respondent shall not have any right to make grievance that his petition was heard and disposed of finally in his absence at the stage of admission.
28. Then, the next relevant rule, to which our attention was specifically invited to by learned counsel for the parties is Rule 39. Rule 39 reads thus:
"39. Application of the High Court of Karnataka Rules, etc.- The provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits 30 Valuation Act, 1958, and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under (Article 226 and/or Article 227) and writ appeals in respect of matters for which no specific provision is made in these rules."
(emphasis supplied)
29. In view of the provisions contained in Rule 39, our attention was invited to Rule 4 and Rule 11 of the High Court of Karnataka Rules, 1959 (for short 'the High Court Rules') to contend that if once the notice is issued and served to show cause, why rule nisi should not be issued, a fresh notice is not necessary.
The Rules 4 and 11 read thus:
1) Rule 4 in Chapter XIII :
Every notice to respondent shall declare that if he does not appear on the day fixed in the notice, the appeal, petition or other matter in which the notice is issued will be proceeded with and heard in his absence.
2) Rule 11 in Chapter XIII :
When a date is fixed for hearing or appearance and is specified in the notice, the matter in which the notice was issued shall not be posted before the said date. When notice has been served and service is held sufficient, no further notice of 31 posting or adjournments shall be necessary except through publication in the cause lists and on the Notice Board of the Court in accordance with provisions of Chapter XV of these rules.
30. This submission deserves to be rejected outright. Rule 4 in Chapter XIII of the High Court Rules provides that every notice to respondent shall declare that if he does not appear on the day fixed in the notice, the appeal, petition or other matter in which the notice is issued will be proceeded with and heard in his absence. The expression 'heard in his absence' needs to be read and understood in the context of the notice issued. If the notice is issued to show cause as to why rule nisi should not be issued, it would mean that the Court can hear the petition in his absence for issuance of rule nisi. The expression 'heard in his absence' does not mean and include hearing of the petition finally at the stage of admission.
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31. Similarly, Rule 11 of the High Court Rules provides that when the date is fixed for hearing or appearance and is specified in the notice, the matter in which the notice was issued shall not be posted before the said date. When notice has been served and service is held sufficient, no further notice of posting or adjournments shall be necessary except through publication in the cause lists and on the Notice Board of the Court in accordance with the provisions of Chapter XV of these rules. It clearly means that once the notice is served to show cause why rule nisi be not issued and the matter is adjourned from time to time, no fresh notice is required for subsequent dates till rule nisi is issued. Similarly, if the notice is issued in Form No.IV of the Rules, after issuance of rule nisi, and the petition is placed on Board from time to time, no further notice for subsequent dates is necessary. These rules do not take the submissions of the learned counsel for the respondents further.
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32. That takes us to consider the submission of learned counsel for the respondents that language of the notice in terms of Form II-A and Form III-A clearly indicate that the petition can be heard and decided finally on merits. The relevant paragraph in the notice in both the Forms, which is identical, read thus:
"If you fail so to appear on the said date or any subsequent date to which the matter may be posted as directed by the Court, without any further Notice, the petition will be dealt with, heard and decided on merits in your absence."
The expression 'the petition will be dealt with, heard and decided on merits in your absence' will have to be read and understood in the context of the notice. If the notice is issued "to show cause why rule nisi should not be issued", the expression would mean that "the petition will be dealt with, heard and decided on merits in your absence whether to issue rule nisi", and would not mean that the petition itself will be decided on merits finally. The intention to dispose of petition at the stage 34 of admission itself will have to be made clear in the order issuing notice. In our opinion, if the aforesaid expression is read to mean that it gives clear indication of hearing of the petition finally, then the format of the notice in Form II-A or III-A would be inconsistent with the intention of the court, issuing notice. The notice in terms of Form II-A or III-A cannot be and is not a substitute to an order of the Court, if the order is silent insofar as intention of the Court to dispose of the petition finally at the stage of hearing of the petition is concerned. In any case, the aforesaid expression cannot be read and understood to mean that the petition itself will be heard and disposed of finally.
33. In support, we would also like to have a glance at Form No.IV of the Rules. Clause (a) of Rule 13 of the Rules provides that if the Court is satisfied, shall direct the rule nisi to the respondent calling upon him to show cause 'why the order sought should not be 35 made'. In that event, notice in form No.IV is provided under Rule 17. It is relevant to notice the language of Form No.IV.
"Whereas writ petition filed by the above named petitioner under Article 226 of the Constitution of India, as in the copy annexed hereunto has been registered by this Court ad upon preliminary hearing, the Court has directed the issue of rule nisi.
Notice is hereby given to you that if you wish to contest the writ petition, you may enter appearance within 10/5 days of the receipt of this notice either in person or by an Advocate appointed by you in that behalf and take such part in the proceedings as you may be advised."
34. From bare perusal of the second paragraph of the notice in Form No.IV shows that if the rule nisi is issued and if the matter is to be finally decided, in the notice it is indicated that "if you wish to contest the writ petition, you may enter appearance". Such is not the language used in Forms II-A or III-A to mean that the petition itself will be decided finally on merits or allowed in terms of the order sought.
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35. The submission was also made in respect of the wording of the notice whereby the learned Single Judge had indicated to issue 'emergent notice'. Rule 3 of the High Court Rules, uses the expression emergent notice. Rule 3 in Chapter XIII provides that unless the Court or these rules otherwise direct or provide appearance by a party served with notice shall not be later than thirty days in the case of appeals; ten days in the case of petitions and applications from the date of service and in the case of emergent notice appearance by a party shall be within five days from the date of service of such notice. Emergent notice thus only indicates that party should enter appearance within five days from the date of service of such notice. Merely, because the word emergent notice is used does not mean that in the absence of respondent, who chooses not to appear at all, on receipt of the notice, the petition can be allowed in favour of the petitioner finally. The 37 Court under any circumstances, whether it is placed n group B, in our respectful opinion, cannot allow the petition finally, where the respondent chooses not to appear on receipt of the notice to show cause why rule nisi should not be issued, without indicating in the order issuing notice, that the petition may be/will be heard and disposed of finally, at the stage of admission.
36. The following three judgments of this Court were placed before us, wherein, Rule 13 of the Rules was considered and so also the system followed by this Court over the years: Nagendrappa vs State of Karnataka (I.L.R. 1993 KAR 2361); Dr. M.M. Nirmala v New Mangalore Port Trust and Others (1995 (4) KAR.L.J.660) and B.U. Dalu vs State Of Karnataka (I.L.R. 1989 KAR 3076.
37. We have carefully gone through all the three judgments with the assistance of learned counsel appearing for the parties. With due respect, we observe 38 that the questions which we are considering in the instant writ appeal did not fall for the consideration of the learned Judges who decided the aforementioned three cases, though reference to Rule 13 in the Rules was made in all the three judgments.
38. In B.U. Dalu's case (supra), the learned Single Judge (Shivashankar Bhat, J.) considered Rule 13 of the Rules and in paragraphs 2, 3 and 4 observed thus:
"2. The facts of the case are quite simple. All that the respondents had to state, is the reason for not paying the compensation to the petitioner inspite of the award made under the provisions of the Land Acquisition Act. In case there was a proper reason for the non-payment, which had to be explained by filing a statement of objections, the respondents could have instructed the learned Government Pleader the nature of their defence, so that, he could have placed the said plea, atleast generally, before the Court. If the respondents point out a plausible defence, this Court always grants sufficient time to the respondents to file the objection statement or issues rule nisi, instead of keeping the matter in the Preliminary Hearing List. Object of issuing a 39 notice under the proviso to Rule 13 of the Writ Proceedings Rules as to why Rule Nisi should not be issued (i.e., notice re: Rule) is to find out as to whether the petitioner has an effective alternative remedy, or whether the petitioner's explanation regarding laches (in case of delay) is prima facie acceptable, or whether the grievance of the petitioner could be satisfied by an explanation of the respondent or whether petitioner's assertion of facts in the Writ Petition is patently erroneous or correct etc. This practice of issuing notice re: Rule is an exception to the normal practice of issuing Rule Nisi whenever petitioner makes out a prima facie case or an arguable case.
3. In a substantial number of cases, facts would be simple and straight; an interpretation of a clause may have a doubt in respect of certain assertions made by the petitioner; in some cases respondent may come forward with a ready answer wither willing to the grant of relief to the petitioner or point out the flaw in the petitioner's case disentitling him to any relief. It is not possible to categorise the innumerable circumstances under which the Court may issue notice re:
Rule. But most of those cases may involve fact situations as stated above. The purpose of this proviso to Rule 13(a) is to enable the disposal of such cases early, instead of keeping them accumulated with other cases involving complicated questions.
4. Whenever "Notice Re: Rule" is issued, the respondent has to instruct his 40 Counsel and place before the Court the nature of his defence. In case the intended defence is shown to be of a substantial character, and is not frivolous or vexatious, the Court would either issue Rule or would certainly grant further time to the respondent to place his defence on record by filing his statement of objections.
(emphasis supplied)
39. Then, Shivashankar Bhat, J. once again in Nagendrappa's case (supra) considered the provisions of Rule 13 and made the similar observations as were made in B.U.Dalu's case.
40. In our opinion, if the respondent appears and files or does not file his objections and documents, despite granting sufficient time, there should not be any difficulty for the Court to decide the petitions finally if the learned judge had made it clear on the first date itself, after the service of notice, its intention to dispose of the petition finally, dispensing with the issuance of rule nisi. The second proviso to cause (a) and clause (b) of Rule 13 of the Rules empowers the Court to decide 41 the petition finally, dispensing with issuance of rule, at the stage of admission, placing such petition for hearing in 'B' Group without any hesitation. What is necessary for disposal of writ petitions on issuance of notice to show cause why rule nisi should not be issued, is the presence of respondent if the notice did not indicate that the petition itself will be considered and decided finally at the stage of admission.
41. In Dr. M.M. Nirmala's case, it appears, after service of notice to show cause why rule nisi should not be issued, the respondent entered appearance through counsel who sought time to file her statement of objections. The petition thereafter appeared on Board after three and half months later in the 'B' Group, when this Court after hearing the petitioners learned counsel, disposed of the petition granting certain limited releifs, in the absence of learned counsel for the respondent. The statement of objection filed on behalf of the 42 respondent was however, taken into account. It is in this backdrop, in paragraph 3, the Division Bench after considering Rule 13 of the Rules observed thus:
"3. As far as this High Court is concerned, at the preliminary stage when notice is issued and it is reasonably certain that the matter can be disposed of after hearing the two parties, the Petition is listed in the 'B' Group. Under the Rules framed by the High Court and in particular Rule 13 as amended, the Court after issuance of notice which is in Form No.III(a) as prescribed by the Rules, placed the Petition in what is known as the 'B' Group, the understanding being that the matter is set down for disposal at this stage itself. This is a system followed by this High Court and it is an accepted position, that both the Bar and the litigants are aware of the fact that the case is such as requires expeditious and immediate disposal. ................................"
42. The Supreme Court in HIMANSU KUMAR's (supra) case has observed that when the question of any importance is raised, rule nisi is usually issued. In SHIVSHARANAPPA's (supra) case this Court after dealing with rule 13 of the Rules, observed that if the Court is satisfied, upon hearing, it shall direct rule nisi 43 to the respondent and if the Court is satisfied that there are no grounds to issue rule nisi, it may dismiss the petition after briefly recording the reasons. The Court if it deems fit, instead of rejecting the petition, may issue notice to the respondent to show cause why rule nisi should not be issued, but the rejection of the petition should only be when the Court is satisfied that there are no grounds to issue rule nisi. The grounds to issue rule nisi in the context must mean that the contentions raised by the petitioner and the case made out by him require a return from the respondent. In B.U. DALU's (supra) case this Court while dealing with the provisions contained in Rule 13 of the Rules, observed that "whenever notice Re: Rule is issued, the respondent has to instruct his counsel and place before the Court the nature of his defence. In case the intended defence is shown to be of a substantial character and is not frivolous or vexatious, the Court would either issue rule or would certainly grant further time to the respondent 44 to place his defence on record by filing his statement of objections."
43. Having regard to the rules and the judgments referred to and discussed in the foregoing paragraphs, in our opinion, the following procedure would be the correct procedure to be followed while dealing with writ petitions in this Court:
(a) If the Court is satisfied, upon hearing learned Advocate for the petitioner, it may direct rule nisi to the respondent, even without issuing notice to show cause why rule nisi should not be issued, and may or may not grant ad-interim order or dismiss the writ petition after recording the brief reasons;
(b) The Court, if it deems fit, may issue notice to the respondent to show cause why rule nisi should not be issued. If the order issuing notice / emergent notice is passed without indicating in the order, that the petition may be / will be heard and disposed of finally, shall not allow the writ petition and dispose it of, where the respondent chooses not to enter his appearance even after receipt of the notice;
(c) If the notice is issued without indicating that the petition may be / will be disposed of finally at the stage of admission, in that event, if the respondent enters his appearance (in person or through an advocate), and if the Court intends to dispose of the writ petition finally, it may make it so clear to the 45 parties on the first date itself or at the earliest and record it in the order while granting time to the respondent to file objections and documents. Despite passing such order, if the respondent chooses either not to file objections and documents or to remain absent on the subsequent date/s, the Court may proceed to decide the petition finally even in the absence of such respondent or issue Rule with/without interim order;
(d) If the Court issues notice indicating that the petition may be / will be heard and disposed of finally at the stage of admission, in the order issuing notice, may allow the writ petition and dispose it of even in the absence of the respondent if he chooses not to enter his appearance after service of such notice;
(e) It would be more appropriate, if the Court finds that some important question of law is involved or substantial rights of the parties are under consideration, and that quick assessment of the issue/question involved is not possible, as far as possible, shall not dispose of the writ petition in the absence of reply affidavit/objections and documents of the respondent and it would be more appropriate to issue rule with/without interim order / relief in favour of the petitioner.
44. In the present case, though the notice was issued, it was not made clear in the order, issuing notice, whether the petition itself will be heard and decided finally at the stage of admission. In other 46 words, it did not apprise the appellant determinatively that he had to be ready for final hearing of the petition or that he had to be ready to oppose the final relief sought in the petition at the stage of admission. The nature of notice was only to show cause why rule nisi should not be issued. In other words he was only called upon to show cause why rule nisi should not be issued and/or he was not put on notice that the petition itself may be/will be heard and decided on merits finally at the stage of admission/issuance of rule nisi even the petition, when was disposed of finally, was placed on board for preliminary hearing.
45. In the result, the writ appeal is allowed. All the three questions are accordingly answered in the negative. The order dated 14.3.2012 passed by the learned single Judge in the writ petition is set aside. The writ petition is restored to file. The learned single Judge is requested to hear and decide the petition afresh.
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46. Learned advocate for the appellant i.e., respondent No.3 in the writ petition, waives notice on behalf of respondent No.3 in the writ petition. The Registry is directed to show appearance of Learned advocate for the appellant whenever, the writ petition would come up for hearing.
Sd/-
JUDGE Sd/-
JUDGE LG/TL/Sak