IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.430 of 2010 Date of decision: 14.6.2011 Bharat Petroleum Corporation Ltd. & anr. …. Petitioners Versus Smt.Swaran Garg ….. Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? No For the petitioners: Mr.B.N.Misra, Advocate. For the respondent: M/s.K.D.Sood and Sanjeev Sood, Advocates. _____________________________________________ Deepak Gupta, J.(Oral) This petition is directed against the order dated 23.10.2010 whereby the learned Lower Appellate Court has disposed of the appeal filed by the defendants-petitioners as well as the application under order 41 Rule 5, CPC and application under Section 151 and 11, CPC. 2 The main grievance of Sh.B.N.Misra, learned counsel for the petitioners is that the arguments were not heard on the merits of the main appeal and the same were only heard on the application filed by the respondent under Section 151 read with Section 11 of the Code of Civil Procedure in which it was prayed that the appeal itself was not maintainable. I have gone through the zimni order- sheet of the learned Lower Appellate Court and the order dated 14.9.2010 reads as follows:- “14.9.2010 Present: Sh.B.N.Verma, Advocate for appellant. Sh.R.K.Garg, Advocate for respondent. Argument heard on application u/s 151 of CPC and u/s 11 CPC. Put up for orders on 23.9.2010. Sd/- Additional District Judge Solan, District Solan (H.P)” Thereafter, the Court adjourned the matter on two occasions only for dictating the judgment and the judgment was pronounced on 23.10.2010. Now in the main judgment, the learned Lower Appellate Court has not addressed the question as to whether the 3 appeal is maintainable or not but on the merits itself has disposed of the appeal. Every party has a right to put-forth its case. The case may be weak or strong but no case should be decided without giving an opportunity to the parties to put-forth its case before the Court. From the order quoted here- in-above, it is apparent that the arguments were heard only on the application filed by the respondent in which she had prayed that the appeal itself was not maintainable. On a perusal of the entire record, I find that there is hardly any discussion on this aspect of the matter. I am not going into the merits of the case but it would have been much better if arguments both on the application and on the main appeal had been heard together. Both should have been decided together by the learned Lower Appellate Court. It is made clear that this Court has not expressed any opinion on the merits of the appeal or the maintainability thereof since the order of the learned Lower Appellate Court is 4 being set aside only on the ground that he while deciding the applications has disposed of the main appeal itself. Therefore, the order dated 23.10.2010 is set aside and the matter is remanded back to the learned Lower Appellate Court who shall decide the same after hearing the learned counsel for the parties. The learned Lower Appellate Court is directed to decide the applications as well the main appeal by one consolidated order since the facts are inter- twined. The parties through their counsel are directed to appear before the learned Lower Appellate Court on 15.7.2011. The learned Lower Appellate Court shall make an endeavour to decide the main appeal as well as the applications at the earliest and in any event not later than 31st August, 2011. The Registry is directed to send the record of the learned Lower Appellate Court back so as to reach well before the aforesaid date. No order as to costs. June 14, 2011 ( Deepak Gupta ) (m) Judge 5