Venkatesh Vs. State of Karnataka & Ors.
EmailAppeal: Civil Appeal Nos. 3052-3053 of 2000
(Arising out of S.L.P. (C) Nos. 6353 & 5392 of 1999)
(Arising out of S.L.P. (C) Nos. 6353 & 5392 of 1999)
Petitioner: Venkatesh
Respondent: State of Karnataka & Ors.
Apeal: Civil Appeal Nos. 3052-3053 of 2000
(Arising out of S.L.P. (C) Nos. 6353 & 5392 of 1999)
(Arising out of S.L.P. (C) Nos. 6353 & 5392 of 1999)
Judges: S.P. BHARUCHA & SHIVARAJ V. PATIL, JJ.
Date of Judgment: Apr 28, 2000
Head Note:
PRACTICE AND PROCEDURE
Constitution
Article 226 – Notice – Service – Notice regarding rule – Court recording that none has appeared despite service – Report of Registrar showing that concerned Respondent’s advocate has ap-peared on a particular date and that is sufficient service. Held that it is not correct procedure. Notice must be served upon Respondent unless it is waived.
JUDGEMENT:
ORDER
1. Leave granted.
2. The principal contention on behalf of the Appellant is that no service of the Writ Petition was effected upon him after the High Court made an order on 10th November, 1997 thus: “Notice regarding rule”. No doubt, on 13th January, 1998, the court has recorded, “No one has appeared for Respondent 5 desp-ite service of notice”. But that is not borne out by the record. Most telling is a communication dated 22nd January, 1999 on behalf of the Registrar (Judicial) of the High Court. It refers to the Writ Petition and states “that there is no acknowledgement to show that notice of W.P. had been served on the 5th Respondent or on his Counsel in W.P. 24856/97. However, Cause List dt. 25.03.98 shows the name of the Advocate for the caveator (Res. 5) which is sufficient notice to Respondent 5.” This, in our view, is not correct. Notice must be served on the concerned Respondent even though he might have appeared on caveat, unless counsel on his behalf has waived service. There is nothing to show that the Appellant had waived service at the relevant time.
3. We think, in the circumstances, that the orders of the High Court must be set aside and the Writ Petition restored to its file for being heard afresh after giving the Appellant the oppor-tunity of filing a counter, if he so chooses.
4. Having regard to the lapse of time, this shall be done expe-ditiously.
5. Order on the appeals accordingly.
6. No order as to costs.
1. Leave granted.
2. The principal contention on behalf of the Appellant is that no service of the Writ Petition was effected upon him after the High Court made an order on 10th November, 1997 thus: “Notice regarding rule”. No doubt, on 13th January, 1998, the court has recorded, “No one has appeared for Respondent 5 desp-ite service of notice”. But that is not borne out by the record. Most telling is a communication dated 22nd January, 1999 on behalf of the Registrar (Judicial) of the High Court. It refers to the Writ Petition and states “that there is no acknowledgement to show that notice of W.P. had been served on the 5th Respondent or on his Counsel in W.P. 24856/97. However, Cause List dt. 25.03.98 shows the name of the Advocate for the caveator (Res. 5) which is sufficient notice to Respondent 5.” This, in our view, is not correct. Notice must be served on the concerned Respondent even though he might have appeared on caveat, unless counsel on his behalf has waived service. There is nothing to show that the Appellant had waived service at the relevant time.
3. We think, in the circumstances, that the orders of the High Court must be set aside and the Writ Petition restored to its file for being heard afresh after giving the Appellant the oppor-tunity of filing a counter, if he so chooses.
4. Having regard to the lapse of time, this shall be done expe-ditiously.
5. Order on the appeals accordingly.
6. No order as to costs.
