2012 Supreme(Kar) 1038

IN THE HIGH COURT OF KARNATAKA AT GULBARGA BENCH
Dilip B. Bhosale and L. Narayana Swamy, JJ.
Lalbi —Appellant
Vs.
Modinamma @ Modinbee and Others —Respondent
Writ Appeal No. 50337/2012
Decided on : 02-08-2012

Headnote:KARNATAKA HIGH COURT RULES, 1959 - Rules 4 & 11: [Dilip B. Bhosale & L. Narayanaswamy, JJ] Interpretation of expression ’heard in his absence’ -Held, 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. 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.

       KARNATAKA HIGH COURT WRIT PROCEEDINGS RULES, 1977 - Rules 13 & 21: [Dilip B. Bhosale & L. Narayanaswamy, JJ] Procedure to be followed under - Held, 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 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 off’ on merits. 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 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.

       KARNATAKA HIGH COURT WRIT PROCEEDINGS RULES, 1977 - Rule 13 (a): [Dilip B. Bhosale & L. Narayanaswamy, JJ] Notice under - Notice issued to the contesting respondent only to show cause why ’rule nisi’ be not be issued - Service of notice on the respondent, but the respondent was absent on the date of hearing - Disposal of the writ petition finally - Ex parte order - Legality of the order passed by the Single Judge being questioned - Held, 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 off 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 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 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 off finally, was placed on board for preliminary hearing.

       CONSTITUTION OF INDIA - Articles 226 & 227: [Dilip B. Bhosale & L. Narayanaswamy, JJ] Writ Proceedings - Rules of natural justice - Held, 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 as 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. 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.