SUBBA NAIKA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) WE have heard the learned counsel representing the contesting parties as also the learned Govt. Advocate on merits.

(2.) THERE is a special reason why we refrain from dealing with the submissions canvassed before us from recording our findings because firstly, in the appeal memo it has been indicated that the learned advocates were heard by the learned single Judge on 5-12-2000 but that no order was pronounced on that date because the orders were reserved. It is certainly open to the learned single Judge to have pronounced the orders at any subsequent point of time thereafter making allowance for a reasonable period of time, for the dictation and finalisation of the order but in that case, for obvious reasons, it is a requirement of law that the order must be pronounced in open Court in the presence of the learned advocates and secondly, for purposes of limitation and several other reasons, it is also a requirement of law that the order will have to bear the date on which it is pronounced. Something strange appears to have happened in this case because, though the learned advocates were heard on 5-12-2000 no orders were passed on that date which is evident from the record and we have also sought a clarification from the learned advocates who represent the parties who have stated that the orders had been reserved. Though the order has been passed in chambers a long time, thereafter, it has been back-dated to 5-12-2000 which is nothing short of a fraud on the system. Under these circumstances, the procedure that has been followed is highly irregular and does not meet with our approval and on this ground alone, we set aside the order in question.

(3.) THERE is an additional reason for our decision, which is that the petition came to be disposed of on 24-2-1995 and the contention was that this happened without hearing the appellant. An I. A. was presented to the Court for setting aside that order and on 25-7-1996, the order in question came to be recalled. It is undisputed that the order that had been passed was an ex parte order and once that order has been recalled it has to be treated as having been obliterated. This is very necessary because, otherwise the hearing of the parties be novo loses total significance. If the earlier order is relied upon, it influence the subsequent decision. We are quick to point out that undoubtedly in a given instance the Court may arrive at the same verdict, but this has got to be on the basis of independent consideration. The grievance made by the appellant's learned counsel is that if the learned single Judge's order is perused, it would be self evident that he has been heavily carried away by the earlier decision despite the fact that the earlier order has been recalled and set aside. The irrestitible conclusion therefore, is that the decision is not on the basis of independent consideration. This is the second reason why this Court is required to set aside the order and remand the proceeding to the learned single Judge. We hasten to add that our approach is not a technical one but that it stands for deep seated proprieties which the judiciary has carved for itself and which are well settled principles and because no breach of those principles would be permissible. Learned counsel representing the parties were undoubtedly concerned about the fact that like many other cases, this is a litigation that has gone on for well over a decade and consequently, the submission was that this Court should hear the learned counsel on merits and decide the dispute once and for all. There would be hardly any reason why this Court should not follow that procedure but again, we are required to fall back on procedural correctness because, if in a given instance a case virtually goes by default before the learned single Judge and the Appellate court effectively decides in the first instance, the aggrieved party would be deprived of the minimum appellate remedy, which would otherwise have been available in this very High Court and that is the deep seated reason why though we could have certainly heard the learned advocates and given a decision on merits, we refrain from doing so. It is necessary for us to add that though these powers can be exercised by the Division Bench particularly when the parties consent on in the appropriate case, that it may give raise to a wrong practice whereby, the forums at some lower level virtually abdicate their functions in the confidence that the higher court would do their job. In view of the aforesaid position, we have no option except to set aside the order passed by the learned single Judge and to remand the writ petition to the learned single Judge taking land reforms writ petitions for a fresh decision.