Allahabad High Court Rules, 1952 – Ch. VIII – r.5 – Constitution of India – Art. 226 – Non-joinder of a necessary party – Appellant was allotted, by grant of a license, a fair price shop in place of the respondent no.1, upon revocation of the license of such respondent on the ground of breach of lawful terms and conditions thereof – Revocation affirmed by appellate order – Writ Petition filed by the Respondent No.1 challenging the revocation of the license and the appellate order affirming the revocation, however, the appellant was not impleaded as a party – Allowed by Single Judge, revocation order set aside – Special Appeal filed by appellant – Dismissed by the Division Bench as not maintainable relying on Chapter VIII r.5 of the High Court Rules, 1952 though granting liberty to the appellant to file a review – Challenge to:
Held: Although r.5, inter alia, ordains that no Special Appeal shall lie from an order passed by a Single Judge of the High Court in writ proceedings u/Art.226 where an appellate/revisional order of the Government or any officer or authority under any of the specified enactments is under challenge, r.5 has to be read and understood in a manner that advances the cause of “access to justice” and not thwart it – The rigours of r.5 would not apply and stand relaxed in a case of the present nature where the order under challenge is one, passed by a Single Judge on a petition u/Art.226 of the Constitution, adversely affecting the rights of a party who was not a party-respondent before the Single Judge – Special Appeal ought not to have been held not maintainable – Also, the maxim ubi jus ibi remedium cannot be ignored – A party suffering an adverse order in judicial proceedings where he is not noticed, because he was not a party, cannot be left without a remedy – Although he can apply for a review, the scope of a review is much narrow than an appeal and would not provide a remedy as effective as an appeal – Impugned judgment of the Division Bench set aside, Special Appeal of the appellant restored. [Paras 15, 16]
Allahabad High Court Rules, 1952 – Ch. VIII – rule 5 – Interpretation – Object & purpose of, stated. [Para 15] Maxim – ubi jus ibi remedium – Constitution of India – Art.226 – Non-joinder of a necessary party – Intra-court appeal – Allahabad High Court Rules, 1952 – r.5: Held: The principle of non-joinder, though originating from the Code of Civil Procedure, 1908, applies with equal force to writ proceedings – An order passed in writ jurisdiction without impleading an affected or necessary party is liable to be invalidated on that ground alone – Where an allegation of non-joinder of a necessary party is raised in an intra-court appeal, the High Court, if satisfied that such allegation has merit, should either remand the matter to the Single Judge or decide it on the merits – Such an approach while not militating against the object and purpose of r.5 would, at the same time, accord with the maxim ubi jus ibi remedium. [Paras 19, 21]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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