YOGESH CHANDER BAHREE Vs. THE REGISTRAR, PUNJAB UNIVERSITY

JUDGEMENT

(1.) MY order of reference, dated November 17, 1965, which contains all the relevant facts of this case may be read and treated as a part of this judgment. The question of law which emerges for decision from those facts is whether the order of the Division Bench of this Court, dated 6th September, 1965, in Review Application No. 33 of 1965 readmitting this writ petition, which had originally been dismissed in limine on July 13, 1965, is a nullity in the eye of law on account of the order in review having been passed without notice of the review application to the Registrar of the Punjab University, the Respondent in the case.

(2.) THE procedure for the issue of appropriate writs of a civil nature under Article 226 of the Constitution is laid down in Part F(b) of Chapter 4 of Volume V of the Rules and Orders of this Court. At motion stage a writ petition goes up before a Division Bench which may either summarily dismiss the petition or order a rule nisi or a notice to be issued against the opposite party. The rule nisi or a notice is then served on the opponent in the manner prescribed in Order 5 of the Code of Civil Procedure for the service of summons upon a Defendant in a suit. Return to the rule is made by filing an affidavit in the Registry of the Court. Rule 9 provides that if any issue on any material question of fact arises from the return made to the rule, the Court may allow oral testimony of witnesses to be taken in a writ case. The procedure to be followed in such an eventuality is laid down in the last portion of Rule 9 in the following words:

(3.) THE Petitioner wants us to hold that the strict and rigid bar contained in proviso (a) to Sub -rule 4 of Order 47 of the Code of Civil Procedure is not applicable to applications for review of an order dismissing a writ petition in limine without issuing any notice to the Respondent and that the procedure for the hearing and disposal of petitions under Article 226 of the Constitution is contained exclusively in the special rules framed by this Court. On the other hand the counsel for the University has invited our attention to a Division Bench judgment of this Court (S.B. Capoor and P.C. Pandit, JJ.), in Sona Ram and Ors. v. Central Government and Ors., I.L.R. (1963) 2 P&H. 341 :, 1963 P.L.R. 599 wherein it has been held that in writ petitions where civil rights are involved the proceedings are in the nature of a suit by virtue of the provisions of Section 141 of the Code of Civil Procedure and therefore, the manner of the trial of suits provided in the Code applies to writ petitions so far as the same can be made applicable. It has been further held in that case that the fact that special rules have been framed by this Court for the issue of Civil writs in Chapter 4 -F(b) of the High Court Rules and Orders, Volume V, would not change the position because the rules framed by the High Court are in addition to but not in substitution of the provisions of the Code. The provision of the Code of Civil Procedure, the applicability of which was in dispute in Sona Ram's case, was Section 151. The learned Judges had, therefore, no occasion in that case to deal with a restrictive provision like the one with which we are concerned. It is significant that the learned Judges, who decided Sona Ram's case took care to hold that the procedure prescribed by the Code is applicable only "as far as it can be made applicable". The ratio of that judgment is based on the provisions of Section 141 of the Code itself. The question which the learned Counsel for the Petitioner has now raised is whether that section itself (Section 141) applies to proceedings in the High Court or not. It is argued by him that Section 4 of the Code provides that in the absence of any specific provisions to the contrary nothing in the Code should be deemed to limit or otherwise affect any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. The counsel submits that procedure for issue of writs and for filing of petitions for review in the High Court having been specifically provided in the High Court Rules and Orders, the Code of Civil Procedure is not applicable to those matters. In the view which we have decided to take of the main points canvassed before us in this case it does not appear to be necessary to go any further into this matter.