There is no denial of the fact that the “Punjab Partition of Immoveable Property Act, 2012” is a procedural law which enunciates certain steps i.e. filing of the suit, summoning of Defendants, appearance of..............

Case Laws November 12, 2024

There is no denial of the fact that the “Punjab Partition of Immoveable Property Act, 2012” is a procedural law which enunciates certain steps i.e. filing of the suit, summoning of Defendants, appearance of Defendants and filing of written statement within a stipulated period, ascertainment of mesne profit, determination of question of title, if any or share; appointment of referee for partition, internal auction, open auction and private settlement. While conducting proceedings it is incumbent upon the court of law to adhere to each and every step so that the requirement of law and justice should be complied with. One of the steps is “internal auction”, whose proceedings were not conducted in consonance with law by approval of all co-owners and parties as per Section 10(2) of the “Act”. It is settled principle of law that where a law requires to be done in a particular manner it should be done in that manner as anything done in conflict with command of law shall be unlawful and being prohibited.

From the language of Section 10(2) of the "Act” it unambiguously clears that the Court has to require all the co-owners to be present in person or through their authorized agents on the date of internal auction. The rationale behind the presence of all the coowners either personally or through their learned counsel is that opportunity of hearing is to be given to the parties so that the ends of justice may be procured. In absence of relevant stakeholders of the proceedings, jumping upon another step/procedure learned trial Court has not only deprived the absentee co-owners from the opportunity of hearing but also violated the principle of fair trial. After insertion of Article 10-A of the “Constitution” in the list of “fundamental rights” it has become obligatory upon the Court to adhere to the procedural steps and to avoid from doing anything which caused prejudiced to the rights of the Parties. Article 10-A of the “Constitution” provides right of fair trial and due process for determination of rights and obligations. Because it is the ceremonial principle of law that the act of the Court should not cause prejudiced to the rights of the Parties, which finds its basis in old latin maxim Actus Curiae Neminem Gravabit.

The principles of Audi Alteram Partem and Actus Curiae Neminem Gravabit, as well as Articles 4 and 10-A of the “Constitution” are central to the present case. The maxim Audi Alteram Partem ensures that no party shall be condemned unheard, mandating that all parties affected by judicial proceedings must be given a fair opportunity to present their case, while Actus Curiae Neminem Gravabit dictates that no one should suffer as a result of a judicial error or omission. Article 10-A guarantees the right to a fair trial and due process, enshrined as a fundamental right, and Article 4 affirms that every citizen is to be treated in accordance with law, with no action taken to their detriment except as per the law.