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2019 DIGILAW 1553 (ALL)

Anamika Mishra @ Rani v. State Of U. P.

2019-07-01

ANIL KUMAR, SAURABH LAVANIA

body2019
JUDGMENT : Saurabh Lavania, J. Heard learned counsel for the appellant and learned counsel for the respondent. 2. By means of the present appeal, the appellant has challenged the impugned judgment dated 30.01.2019 passed by Additional Principal Judge, Family Court, Lucknow. 3. Learned counsel for the appellant submits that the impugned judgment dated 30.01.2019 passed by Additional Principal Judge, Family Court, Lucknow is an ex-parte order and was passed without providing any opportunity of hearing to the appellant. The appellant's application for recall of order dated 28.08.2018 (order to proceed ex-parte) was also not taken note of by the court below while passing the judgment under appeal. As such, the impugned judgment is liable to be interfered. 4. Learned counsel for the respondent submits that in the present case, the appellant has filed a case under Section 12 of Hindu Marriage Act registered as Original Suit No.2656 of 2015 in the Court of Additional Principal Judge, Family Court, Lucknow. In the said matter, date was fixed, which was in the knowledge of the appellant and the appellant/Smt. Anamika Mishra @ Rani willfully and deliberately did not appear before the court below. In this regard, he has placed reliance on the order sheet of the court concerned. The appellant had knowledge about the case which was to be heard on the date fixed. He further submits that in view of the above said facts, the appellant has no right to challenge the impugned judgment dated 30.01.2019. 5. We have heard learned counsel for the parties and gone through the records. 6. From the perusal of the record, the position which emerges is that the respondent no.2/Pradeek Mishra had moved an application under Section 12 of Hindu Marriage Act registered as Original Suit No.2656 of 2015 in which the judgment passed by the Additional Principal Judge, Family Court, Lucknow is ex-parte and while passing the judgment under appeal the court below has not observed any thing in regard to application for recall of order dated 28.08.2018 moved by the appellant. The impugned judgment appears to be in violation of principles of natural justice. 7. Natural justice is an important concept in administrative law. In the words of Megarry J it is "justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical". The impugned judgment appears to be in violation of principles of natural justice. 7. Natural justice is an important concept in administrative law. In the words of Megarry J it is "justice that is simple and elementary, as distinct from justice that is complex, sophisticated and technical". The principles of natural justice or fundamental rules of procedure for administrative action are neither fixed nor prescribed in any code. They are better known than described and easier proclaimed than defined. 8. Natural justice is another name for common-sense justice. Rules of natural justice are not codified cannone. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. 9. The expressions "natural justice" and "Legal justice" do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant's defense. 10. The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. There 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. It must be precise and unambiguous. It should 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 make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. It must be precise and unambiguous. It should 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 make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but 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 principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". the classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works the principles was thus stated: "Even God himself did not pass sentence upon Adam before he was called upon to make his defense. 'Adam'(says God), 'where art thou? hast thou not eaten of the tree whereof, I commanded thee that thou shouldest not eat." 11. Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond. 12. It is not possible to define precisely and scientifically the expression "natural justice". Though highly attractive and potential, it is a vague and ambiguous concept and, having been criticised as "sadly lacking in precision, has been consigned more than once to the lumber-room. It is a confused and unwarranted concept and encroaches on the field of ethics. Though eminent judges have at times used the phrase "the principles of natural justice", even now the concept differs widely in countries usually described as civilised. 13. It is true that the concept of natural justice is not very clear and therefore, it is not possible to define it; yet the principles of natural justice are accepted and enforced. In reply to the aforesaid criticism against natural justice, Lord Reid in the historical decision of Ridge V. Baldwin, (1963) 2 AllER 66 (HL) observed: "In Modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. In reply to the aforesaid criticism against natural justice, Lord Reid in the historical decision of Ridge V. Baldwin, (1963) 2 AllER 66 (HL) observed: "In Modern times opinions have sometimes been expressed to the effect that natural justice is so vague as to be practically meaningless. But I would regard these as tainted by the perennial fallacy that because something cannot be cut and dried or nicely weighed or measured therefore it does not exist......" 14. Further, Natural justice is a branch of public law. It is a formidable weapon which can be wielded to secure justice to citizens. Rules of natural justice are "basic values" which a man has cherished throughout the ages. They are embedded in our constitutional framework and their pristine glory and primacy cannot be allowed to be submerged by exigencies of particular situations or cases. Principles of natural justice control all actions of public authorities by applying rules relating to reasonableness, good faith and justice, equity and good conscience. Natural justice is a part of law which relates to administration of justice. Rules of natural justice are indeed great assurances of justice and fairness. 15. The golden rule which stands firmly established is that the doctrine of natural justice is not only to secure justice but to prevent miscarriage of justice. Its essence is good conscience in a given situation; nothing more-but nothing less. 16. As Lord Denning in the case of Kandaa v. Govt. of Malaya, (1962) AC 322 observed that "if the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused person to know the case which is made against him. .He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them." 17. Hon'ble the Apex Court in the case of Bishambhar Nath Kohli v. State of U.P., (1955) AIR SC 65 held that "in revision proceedings, the Custodian General accepted new evidence produced by one party, but no opportunity was given to the other side to meet with the same. The Supreme Court held that the principles of natural justice were violated." 18. The Supreme Court held that the principles of natural justice were violated." 18. The Supreme Court in the case of Ramji Dass and others v. Mohan Singh,1978 ARC 496 has held that as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. In that case the appeal was filed against an ex parte decree after eight years and the District Court as well as the High Court had rejected the matter on the ground of delay. However, setting aside the order of the High Court, Hon'ble Justice V.R. Krishna Iyer observed as under: "... we are inclined to the view that, as far as possible, Courts' discretion should be exercised in favour of hearing and not to shut out hearing. Therefore, we think that the order of the High Court should not have been passed in the interest of Justice which always informs the power under S. 115 C.P.C. ..."? 19. Thus, keeping in view the aforesaid including the argument as raised by learned counsel for the respondent and the admitted position on record that the impugned judgment is an ex-parte judgment as well as Golden Principle of Law that no person should be unheard and if any order is passed without hearing a person, the same is in violation of principles of natural justice and is liable to be set aside and the settled principle that the opportunity of hearing should be provided for substantial justice between the parties, the appeal is allowed and the impugned order dated 30.01.2019 passed by Additional Principal Judge, Family Court, Lucknow is set aside with a direction that the matter shall be decided within a period of one month and parties are directed to appear before the court concerned on 09.07.2019 and from the date of their appearance, the matter should be decided within a period of one month.