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2014 Supreme(Kar) 143
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
D.H.WAGHELA, B.S.PATIL,A.N.VENUGOPALA GOWDA, JJ.
Triveni Engineering and Industries Ltd., - APPELLANT
Versus
The State of Karnataka, - RESPONDENTS
W.A.Nos. 31266267/2013
Decided On : 21-02-2014
By Sri H.Subramanya Jois, Sr. Counsel, for Sri Shriharsh Neelopant, Adv.)
By Sri A.S.Ponnanna, Govt. Adv. for R1; Sri K.M.Nataraj, Sr. Counsel, for Sri Shivraj P.Mudhol & Sri Anand Bagevadi, Adv. for R2)
Headnote:CONSTITUTION OF INDIA - Article 226 & Writ Proceedings Rules, 1977 (Karnataka), Rules 13(a) (b), 17 & 21: [D.H. Waghela, C.J., B.S. Patil & A.N. Venugopala Gowda, JJ] Ex-parte hearing - Writ Petition posted for preliminary hearing - Inspite of issue of Notice to respondent, he failed to appear - Held, A clear, definite and unambiguous notice of the proceeding informing him that the matter will be heard and decided on merit, in case the respondent does not appear in the matter, is a mandatory requirement, so that the first step towards compliance of principles of natural justice is observed. Once such a notice is served on the respondent, it will be his duty to appear before the Court and contest the matter, if he does not want the matter to be heard ex parte. The format of the notice in Form II-A and Form III-A very clearly disclose that the respondent is notified that the petition will be dealt with, heard and decided on merits, if he fails to appear on the specified date.
Whether notice regarding rule is issued under the first proviso or under the second proviso to Rule 13(a), if the respondent wants to file objections for effective disposal, he will be entitled to file objections and produce documents, if any. In other words, after service of notice regarding rule in case the Court finds that the grounds urged by the petitioner deserve a response by the respondent by filing objections and producing documents, he will certainly have the right to file counter and produce documents in support of his defence.
A simple and straightforward approach needs to be adopted in issuing notice. Whenever notice is issued to the respondent to appear, he should be clearly informed that, in case he does not appear on the date specified or on the subsequent dates when the case in notified for hearing, the case will be dealt with, heard and decided on merit, in his absence. If he appears on the date specified pursuant to the notice, then it will be for the respondent to impress upon the Court that the will grant him reasonable time to file statement of objections. If the case can be decided without any statement of objections on the basis of the available materials and documents, then the Court may decide the same on merit.
Depending on the nature of the questions raised, the Court may decide either to admit the case or dispose of the same without admitting it. Proviso to Rule 13(a), therefore, deserves a re-look by the rule making authority. Use of the expressions ’rule nisi’ and ’notice regarding rule nisi’ being phrases not in common parlance, they can be avoided by substituting in their place simple and common expression capable of being easily understood.
The rules of procedure framed in Rule 13 have to be interpreted and understood keeping in mind the twin considerations of providing a clear and unambiguous notice of the proceedings to the litigant and the need to avoid unnecessary delay in the disposal of the cases.
Therefore, issue of notice regarding rule, which is the normal practice of Karnataka High Court when the cases are listed for preliminary hearing, is in aid of quick dispensation of justice, not merely to provide an opportunity to the respondent to show cause why the case should not be admitted by u rule, but also to ascertain if the case can be quickly decided without admitting the same and relegating it to the hearing list to await its turn for disposal. This intent and purpose is made clear by inserting Form III-A. The insertion of Form III-A by issuing the notification on 20/22-12-1990 with effect from 27-12-1990 is aimed at notifying the respondent with all certainty and without any ambiguity that if he fails to appear, the case will be heard and decided on merit in his absence. [Lalbi vs Modinamma @ Modinvee & ors., ILR 2012 Kar 4403, Approved].
LEGAL DOCTRINES & MAXIMS - Doctrines of per incuriam and sub-silentio: [D.H. Waghela, C.J., B.S. Patil & A.N. Venugopala Gowda, JJ] Held, Doctrines of per incuriam and sub-silentio operate as exceptions to the rule of precedent. Incuriam literally means carelessness. In practice, per incuriam means per ignorantium. Doctrines of per incuriam and sub-silentio have been taken recourse to by the Courts for relieving from injustice perpetrated by unjust precedents. A decision which is not express and is not founded on reasons or consideration of the issue, could not be deemed to be a law declared having binding effect as is contemplated under Article 141 of the Constitution.
The doctrine of per incuriam has no application in a case to ignore the principle laid down after analyzing the relevant provisions of law by a co-ordinate Bench. The doctrine of per incuriam is resorted to when decisions are rendered without reference to statutory prescriptions or other binding authorities.
1. The High Court of Karnataka has framed Rules to regulate the proceedings under Articles 226 & 227 of the Constitution of India. They are known as “Writ Proceedings Rules, 1977” (for short, ‘the Rules’). They have come into force with effect from 01.02.1977. Among other things, the said Rules provide for the procedure to be followed once the matter is posted before the bench for preliminary hearing. Rule 13 which is relevant for the purpose provides in subclause (a) that the Court if satisfied shall issue rule nisi calling upon the respondent to show cause why the order sought should not be made. The first proviso to Rule 13(a) provides for issue of notice to show cause why rule nisi shall not be issued. The second proviso to Rule 13(a) provides that the Court may direct the respondent to file objection and documents while issuing notice regarding rule, in which event, as per subclause (b) of Rule 13, issue of rule nisi may be dispensed with and the matter may be heard and disposed of on merits.
2. With regard to the interpretation of Rule 13, there are two conflicting judgments of two Division Benches of this Court. The view taken by a Division Bench in LALBI VS MODINAMMA @ MODINBEE & OTHERS – ILR 2012 KAR 4403, is held per incuriam in the subsequent judgment of another Division Bench in the case of K.PEDDANNA VS THE MANAGEMENT OF KSRTC, DAVANAGERE DIVISION – ILR 2013 KAR 4335. The matter has been referred to the Full Bench. The question referred is,
“whether the judgment of the Division Bench in Lalbi can be held to be per incuriam?”
3. In Lalbi’s case, a Division Bench of this Court has taken the view that as per the first proviso to Rule 13(a), it was clear that where notice was issued to show cause why rule nisi should not be issued, it would not be proper to allow the writ petition finally if the respondent chose not to appear on receipt of such notice and to dispose of the petition. In such a case, it would render the order an exparte order and there would be danger of violation of the principles of natural justice if such course was adopted.
4. In Lalbi’s case (supra), the Division Bench has examined the language employed in Rule 13 and also the submission made at the bar by the counsel for the respondents therein with reference to the terms of the notices contained in Form IIA and Form IIIA stipulating that the petition could be heard and decided finally on merits in case the respondent fails to appear on the date specified or on any subsequent date to which the matter may be adjourned. In paragraph 32 of the said judgment, it has been found that notice in terms of Form IIA and IIIA cannot be and is not a substitute to an order of the Court, if the order of the Court is silent as regards the intention of the Court to dispose of the petition finally at the stage of preliminary hearing of the petition and that the said expression used in Form IIA or IIIA would only mean that the petition would be dealt with, heard and decided on merits in the absence of the respondent with regard to the question of issue of rule nisi and would not mean that the petition itself would be decided on merits finally.
5. However, in a subsequent judgment rendered by another Division Bench in Peddanna’s case (supra), it has been held that when a notice regarding rule is issued in Form IIIA, the Court is well within its jurisdiction to dispose of the matter without any further notice, because the rules of procedure have to be read so as to assist the court in quick dispensation of justice. It is, therefore, observed that interpretation of Form III
A contrary to its intention and contrary to the procedure followed by this Court for decades being uncalled for, the judgment in Lalbi’s case was per incuriam.
6. The Division Bench has, in the latter case, held that this Court has been consistently issuing notice in Form IIIA wherein there is a clear indication that if the party fails to appear on the date mentioned in the notice,
