{ 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T D.B. CIVIL SPL. APPEAL (WRIT) NO.738/2001 BHANWAR LAL NAYAK THROUGH LRs. VS. STATE OF RAJASTHAN & ORS. Date of Judgment : 11.11.2010 PRESENT HON'BLE MR.JUSTICE A.M.SAPRE HON'BLE MR.JUSTICE C.M. TOTLA Mr. Mukesh Rajpurohit, for the appellants. Mr. I.S. Pareek, for the respondents. REPORTABLE BY THE COURT: (PER HON'BLE A.M. SAPRE, J) This is an intra court appeal filed by the legal representatives of one Bhanwarlal who was the original writ petitioner of writ petition No. 990 of 1996. This appeal is filed under Rule 134 of the Rajasthan High Court Rules against the order dt. 8.8.2001 passed by Single Judge in aforementioned writ petition. 2. By impugned order, the learned single judge dismissed the writ petition essentially on the ground that it does not contain requisite pleadings. 3. So the question that arises for consideration in this appeal is whether, Single Judge was justified in dismissing the writ petition and if so whether the ground for its dismissal is legally and factually proper to sustain such dismissal? Facts of the case lie in a narrow compass.They however need mention in brief infra. { 2 } 4. One Bhanwar Lal was working as Sub Inspector in Rajasthan State Police Department. The State took recourse to Rule 236 of the Rajasthan Service Rules, 1951 (for short hereinafter called The Rules) and accordingly dispensed with his services vide order dt. 13.3.1995. It is against this order, Bhanwarlal felt aggrieved and filed the writ petition under article 226 and 227 of Constitution of India out of which this intra court appeal arises challenging the legality and correctness of the order dt. 13.3.1995 by which his services were dispensed with. 5. The learned Single Judge, as stated supra, dismissed the writ petition essentially on the ground that since the writ petition does not contain material pleadings and proof, and hence, it is liable to be dismissed on this ground alone. The learned Judge in support of this reasoning placed reliance on the two decisions of the Supreme Court reported in AIR 1988 SC 2181 and (2001) SCC 133. In the light of this reasoning, the learned single judge did not consider it necessary to examine the merits and demerits of the impugned order dt. 13.3.1995 whose legality was challenged by the writ petitioner in the writ petition. It is against this order; the writ petitioner felt aggrieved and filed this intra court appeal. 6. During pendency of this appeal, Bhanwarlal died and therefore, the present appellants, who are his legal representatives, were allowed to be brought on record on their prayer made in this behalf to continue the lis involved in the writ for and on behalf of deceased Bhanwarlal. 7. Having heard the learned counsel for the parties and on perusal of the record of the case, we have formed an opinion to remand the case to the writ court for deciding the writ petition on merits. It is for this reason, we do not wish to burden our order by narrating the facts in detail nor do we { 3 } consider it proper to record any finding on merits on an issue which is subject matter of writ petition except to record a finding which is necessary to sustain the order of remand. It will be now for the writ court to record findings on merits of the controversy involved in the writ petition 8. It is a settled principal of law that it is the duty of the Court to do substantial justice between the parties and that every endeavor should be made to ensure that the case is decided on its merits after affording full opportunity to the parties to the case. Equally, well settled principal of law is that as far as possible, the procedural law should not be used to penalize the parties while prosecuting the case which may deprive them of their right of hearing and that decision should not be taken behind their back. If any authority is needed in support of this well known proposition, then one can rely upon the locus classic authority of the Supreme Court reported in A.I.R. 1955 SC 425 Sangram Singh vs Election Tribunal. An eminent Judge, Vivian Bose J with this distinctive style of writing made following far reaching observations while speaking for the bench. “A Code of procedure must be regarded as such. It is procedure something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leave no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to both sides) lest the very means designed { 4 } for the furtherance of justice be used to frustrate it. Our Laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, the decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.” 9. Keeping these observations in mind, let us consider the case in hand. 10. Mere perusal of the impugned order would go to show that the learned single judge first took note of the controversy involved in the writ with following words:- “The instant writ petition has been filed for quashing the order dated 13.3.95 (Annex.19), by which petitioner was given retirement under rule 236 of the Rajasthan Service Rules, 1951 (for short, “the Rules”).” 11. He then took note of the submissions of both the learned counsel for the parties and then made following observations:- “It is settled proposition of law that a party has to plead the case { 5 } and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas.” 12. Immediately there after, the learned judge quoted the law laid down by the Supreme Court in two decisions refereed supra, in which it was interalia held that if any finding is rendered in the absence of pleading and proof then such finding is not sustainable in law. After quoting the law, the learned judge proceeded to make the following observations:- “Moreso, petitioner has not filed any rejoinder- affidavit rebutting the factual averments made by the respondents.” 13. Having said this, the learned single judge proceeded to dismiss the writ petition by making following observations: “In view of the above, I find no force in the petition and it is accordingly dismissed. However, in case the aforesaid criminal case pending against the petitioner has been concluded, the claim for grant of pension to the petitioner may be considered strictly in accordance with law.” 14. With respect, we can not concur with the aforementioned reasoning and the conclusion arrived at by the writ court for more than one reason. 15. Firstly, this was not a case where the law laid down by the Supreme Court in two cases reported in A.I.R.1988 SC 2181 and (2001) SCC 133 could be applied by the learned Single Judge. Mere perusal of the writ petition would go to show that it was running in as many as 17 pages and contained pleadings and grounds for examining the legality and proprietary of the order dt. 13.3.1995 impugned in the { 6 } writ petition on its merits one way or other. In other words, since the writ petition contained sufficient pleading so also the grounds and hence it should not have been dismissed for want of material pleadings. Secondly and even assuming that some material pleadings were lacking as the learned Judge felt though no such objection was raised by the respondent, then also the writ court in order to do substantial justice to the parties should have first afforded an opportunity to the writ petitioner to amend the pleading. This was permissible because, even if amendment had been allowed at a later stage, it would not have changed the nature of attack already pleaded in the writ petition nor it would have resulted in setting up of any new case. Such course, if adopted, would not have caused any prejudice to the parties because both would have got an opportunity to make amendment in their pleadings. Thirdly, the cases relied on by Single Judge had no application to the facts of this case because in those cases, a finding recorded by the courts below was assailed on the ground that since it was recorded without there being any pleading and proof and hence it is without jurisdiction. It is on these facts, the Supreme Court held that if a finding is returned by the court in the absence of requisite pleading and evidence then it is not legally sustainable and has to be set aside being without jurisdiction. In the present case, this situation did not arise because the writ court was called upon to decide the legality of the order dt 13.3.95 passed by the State Government for the first time and hence there was no finding recorded by any court/tribunal on the issue under consideration like the one in cases before the Supreme Court. Fourthly, the learned single judge though took note of the law laid down by Supreme Court but did not record any finding as to how such law have any application to the facts of present { 7 } case and which pleadings according to learned judge was material in the writ petition but missing as a result of which, the writ petition was liable to be dismissed on such fatal infirmity and lastly, the learned Single Judge should have seen the prejudiced which was caused to the writ petitioner whose writ petition was dismissed at the time of final hearing on such technical ground. Such dismissal deprived him of the hearing on merit. 16. In our opinion therefore, the writ court should not have dismissed the writ petition on such technical ground and in any event, it could not have done so without affording an opportunity to the writ petitioner to first amend the writ petition and make necessary amendment in his writ petition. 17. In the light of forgoing discussion, the appeal succeeds and is accordingly allowed. Impugned order is set aside. The writ petition out of which this intra court appeal arise is restored to its file. Liberty is granted to the parties to amend the pleadings in case, if they so wish. The registry is directed to list the writ petition before appropriate single bench for hearing No costs ( C.M. TOTLA),J. ( A. M. SAPRE ),J. /Anil/