RAMALINGAM Vs. SREESELAM

JUDGEMENT

(1.) INDAR Ramalingam, Indar Sivamallayya and Indar Laxmayya filed a suit for partition of joint family property against their father and their cousin brother. The plaint allegation was that Indar Ramalingam was the adopted son and plaintiffs Nos. 2 and 3 were the natural sons of Indar Venkiah. Defendant No. 2 and plaintiffs were members of a joint family. Indar Venkiah their father executed a release deed in favour of Indar Sreeselam, their cousin brother, in respect of one item of the joint family property relinquishing his interest therein which they said he was not competent to execute as it affected the right and interest of the plaintiffs. They prayed for a decree for the cancellation of the release. The contesting defendants resisted the suit on various grounds. The Sessions Judge, Secunderabad, while decreeing the suit of the plaintiffs to the extent of half the share in house No. 8048, Ghas Mandi, Secunderabad, refused to grant the relief in respect of the cancellation of the release deed executed by defendant No. 2. The plaintiffs have appealed against this decree.

(2.) ALTHOUGH the plaintiffs paid the court -fee on their claim in the original Court, they have filed this appeal in 'forma pauperis'. When this petition came on for hearing before this Court, a bench of this Court sent the case to the lower Court for enquiry with regard to the pauperism of the petitioners -appellants. After the case went to the trial Court, evidence was led by both the parties and the case came back after enquiry with the report of the Sessions Judge holding that the plaintiffs were paupers. On 17th October 1950, Mr. Ramaswamy Aiyengar, Advocate, appearing for the respondents represented to the Court that he would argue about the question of the maintainability of the appeal and also about the pauperism of the appellants. The case was posted for arguments before us today. We heard the arguments of the respective advocates.

(3.) IN so far as the first argument is concerned that it should be shown that the decree appealed from is against law or is contrary to any usage having the force of law, we would like to point out that an application under S. 609 is a judicial proceeding and the order made thereon should be based upon the exercise of a judicial discretion on a proper consideration of the relevant material. It is a fundamental principle in all judicial procedure that no order should be made without notice to the parties who will be prejudicially affected by the order and without affording them a reasonable opportunity of being heard. Thus we are of the opinion that under S. 609 of the Hyderabad Civil P. C. reasonable opportunity of being heard must be given to the parties who will be affected by the order. The mere absence of an express provision for hearing the applicant is, in our opinion, no justification for refusing to hear him. Hearing the parties affected before passing adverse order is such a well established and cardinal principle governing the procedure of Courts that the code must be taken to assume its observance in all cases as a matter of course without any express provision in that behalf.