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Judgment
J.B. Koshy, J.—This revision petition is filed by the Plaintiffs in O.S. No. 215 of 1993 on the file of the Sub Court, Kattappana. The above suit was filed in 1993 for declaration of their title and recovery of possession of the plaint schedule property, after setting aside gift deed No. 394/1959 and for incidental reliefs. The written statement was filed in 1995 and the case was posted in the ready list in January, 1995. Meanwhile in December, 1994, Defendants filed I.A. No. 1917 of 1994 to amend the written statement. The above amendment was allowed by the learned Munsiff on the ground that no prejudice will be caused to the Plaintiffs by amending the written statement and nature of the suit will not be changed. The amendment sought for could not in any way cause any injustice to the Plaintiffs. The necessary averments for the present amendment were already made in the earlier" written statement itself. Therefore, learned Munsiff found that amendment application can be allowed. This order is challenged mainly on the ground that the Plaintiffs were not allowed to file an objection to the above.
It is the case of the revision Petitioners that notice of the petition was given to them on 13th December 1994. On that day the junior advocate appearing for the Plaintiffs filed an application for adjournment stating that he has to contact the senior advocate at Ernakulam and to contact his clients in Tamil Nadu for filing an objection. This was not allowed and the case was posted to the next day for filing objection and hearing and the order was passed without giving an opportunity to the Petitioners to file an objection. It is the case of the Petitioners that if time for objection was granted they would have been able to prove that additional facts are introduced and amendment cannot be allowed in law. So the major case of the Petitioners rest with violation of the principles of natural justice in not allowing them time for filing objection to the amendment application.
It is pointed out by the Petitioners that in Thampi v. Collector of Central Excise 1989 (2) KLT 65 the party has got a right of hearing in the appeal proceedings will not cure the defect of principles of natural justice in the original proceedings. Therefore, to substantiate the case before this Court Petitioners have got an opportunity is not a ground for not allowing them to file objection in the lower Court. The Petitioners then refer to Rule 41 of the Civil Rules of Practice where it is stated as follows:
Unless the court otherwise order, notice of an interlocutory application shall be given to the other parties in the suit or matter or to their pleaders, not less than three days before the day appointed for the hearing of the application.
Therefore, it is contended that under the Civil Rules of Practice minimum three days notice is necessary before the case is taken up for argument. Here the case was posted for argument without giving time for filing objection. Therefore, the procedure adopted by the learned Munsiff in posting the case on the next day is violative of the Civil Rules of Practice. It is also pointed out that under Rule 55, the opposite party is entitled to file an objection. Here no time for filing objection was granted even when an application for adjournment along with an affidavit by the junior advocate was filed. Therefore, the order is clearly in violation of the Civil Rules of Practice and principles of natural justice.
In Rafiq and Another Vs. Munshilal and Another, it was held that party should not suffer for the inaction of his counsel. Here, in fact, an affidavit was filed for adjournment stating that since his party is at Tamil Nadu he cannot file an objection on the next day itself. In Joseph Michael v. Income Tax Appellate Tribunal 1992 (1) KLT S.N. 12 it was held that order passed without giving an opportunity to represent their case is invalid.
In Satya Narayan Maity Vs. Sunirmalendu Maity, it was held that failure to give opportunity to a party to file his objections to the statements contained in an application of the other party vitiates the ultimate order. Therefore, it is contended that they were not given an opportunity to file objection and hearing was done on the next day of filing the application violating the Civil Rules of Practice. Therefore, it should be set aside. The reason for refusing adjournment stated by the learned Munsiff was that there will be delay as suit itself was filed in 1993 and it is in the ready list. It is argued by the Petitioners that the petition for amendment itself w as filed after the case was posted in the ready list and in that case, for avoiding delay amendment application should have been dismissed. No extra advantage will be given to him in prolonging the suit.
It is contended on behalf of the Respondents that I.A. No. 982 of 1994 for the same relief of amendment was filed on 25th July 1994. For five months the matter was pending. No objection was filed by the Plaintiffs. Petitioners were aware of the petition and their prayer for amendment. Even though that was not pressed, the same contents are pressed here and therefore, there was sufficient time for the Plaintiffs to file their objections. Even in the earlier petition, after five months also they did not file their objections. Again it was pointed out that the amendment sought to be carried out is of a simple nature without altering the nature of the suit and no new facts are pleaded. So even if the objection was filed no different decision could have been arrived at and the entire objections can be heard here itself. It can be seen that the impugned order is correct in law.
It can be seen that I.A. No. 982 of 1994 was dismissed as not pressed and the present I.A. No. 1917 of 1994 was filed for amendment of the written statement. The question to be considered is whether the Petitioners should have been given an opportunity to file their objection and hearing when they specifically applied for the same. It is not disputed that the case was posted on the next day of filing of the amendment application. No time for filing objection was granted in spite of the affidavit filed by the junior advocate appearing in the case that he has to contact the senior advocate at Ernakulam and to contact the party in Tamil Nadu. Under Rule 41 of the Civil Rules of Practice, when an interlocutory application is filed three days time should be given for hearing. In this case that rule is violated. Therefore, there is violation of the procedural rules. In exceptional circumstances three days'' time as mentioned in the rule need not be given. Here there is no such circumstance especially when advocate applied for time with an affidavit mentioning cogent reasons. This defect cannot be cured because of the opportunity he has, for hearing in this revision application.
It is fundamental to fair procedure that both sides should be heard. The principle of ''audi alteram partem'' or ''hear the other side'' is a far reaching principle of natural justice. The hearing to be granted should be a fair hearing. When a reasonable opportunity to file objection is not granted or a reasonable opportunity to contact the client in spite of specific prayer is refused, it cannot be held that there is fair hearing. Under the Civil Rules of Practice, there is three days'' time to contact the parties, to prepare objection and for hearing. Even when an order of determination is unchallengable as regards to substance, the violation of the fundamental principles of natural justice will go to the root of the matter. The hearing to be granted should be fair and party should get reasonable opportunity to place his defence. In R. v. University of Cambridge (1723) 1 S.T.R. 557 it was held as follows:
I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. ''Adam, says God, where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldst not eat?'' And the same question was put to Eve also.
It is true that procedural objections are often raised by unmeritorious parties. Judges may then be tempted to refuse relief on the ground that a fair hearing could have made no difference to the result. But in principle it is vital that the procedure and the merits should be kept strictly apart, since otherwise the merits may be prejudiced unfairly. In General Medical Council v. Spackman (1943) A.C. 627 it was held by Lord Wright as follows:
If the principles of natural justice are violated in respect of any decision it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.
The general principle is stated in the maxim:
''Qui Aliquid Statuerit parte inaudita altera, aequum licet dixerit, hand aequum facerit'' (He who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is tight).
Therefore, atleast three days'' time was not given by the learned Munsiff as provided under the Civil Rules of Practice. He ought to have decided the matter after giving an opportunity to the Petitioners to file objection. It is true that suit was filed in 1993. Therefore, long adjournment need not be given. It is to be taken note of that the application for amendment of the written statement was filed only in December, 1994 after the suit was listed for trial. Therefore, atleast three days'' time required under the Civil Rules of Practice should have been given to the Petitioners/Plaintiffs to file objection and hearing.
In the above circumstances, without expressing any view on the merits of the case, I set aside the impugned order and remand the matter for deciding the case according to law. The application for amendment of the written statement should be decided within one month from the date of receipt of a copy of this judgment. Both parties may appear before the Sub Court, Kattappana on 23rd July 1996 and on that day, if there is any objection to the amendment application that should be filed by the Petitioners/Plaintiffs. The suit itself may be disposed of as expeditiously as possible.
The Civil Revision Petition is disposed of with the above directions.