S.B.Civil Misc. Appeal No.333/94 Vijaysingh & ors. vs. LRs of Late Nainsingh 1 S.B.Civil Misc. Appeal No.333/94 Vijaysingh & ors. vs. LRs of Late Nainsingh Date of Order: 11.12.2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. Kailash Trivedi for the appellants. ... Heard learned counsel for the appellants as no body appeared before this Courta even after second round on behalf of the respondents. It appears that the suit was filed in the year 1978 for specific performance of the contract impleading 9 defendants, which was decreed by the trial court against only defendant no.1 Nainsingh, vide judgment and decree dated 30.11.1983. It appears that since decree was against only one of the defendants, therefore, said defendant Nainsingh preferred Regular First Appeal No.37/90(4/84), which was allowed by the first appellate court on the ground that reasonable opportunity was not granted to the defendant Nainsingh, as his evidence was closed only after giving two opportunities. The first appellate court set aside the judgment and decree S.B.Civil Misc. Appeal No.333/94 Vijaysingh & ors. vs. LRs of Late Nainsingh 2 dated 30.11.1983 and remanded the matter to the trial court with liberty to the defendant to produce evidence. The said order of the first appellate court dated 15.9.1993 of remand has been challenged by preferring appeal before this Court on 21.12.1993. After service of the several defendants who have been impleaded as parties due to death of the sole first appellant Nain Singh before the first appellate court, 15 years have consumed in this Court. So far as merit is concerned, it is clear that the first appellate court found that the reasonable opportunity was not granted to the defendant for producing the evidence and the court should have granted more opportunities to the defendant, then there is no illegality in the said order of remand. However, the learned counsel for the appellant submitted that the defendant no.1 who was the sole appellant before the first appellate court died before the first appellate court decided the appeal vide order dated 15.9.1993. It appears from the order dated 15.9.1993 that that order was passed after hearing both the parties and it was not objected by the defendants-appellants before the first appellate court that the sole appellant Nainsingh himself has died. Be it as it S.B.Civil Misc. Appeal No.333/94 Vijaysingh & ors. vs. LRs of Late Nainsingh 3 may be, it is an order in favour of a dead person and not against the dead person. The grievance could have been of dead person's legal representatives, if order would have been against the dead person or dead person's legal representatives or against the interest of the estate of dead person. Therefore, I do not find any merit in the submission of the learned counsel for the appellant on this count. Be it as it may be, the fact could have been pressed before the trial court to whom the matter has been remanded by the order of the first appellate court dated 15.9.1993, where an enquiry could have been conducted about the fact whether Nainsingh died before the appeal was decided by the first appellate court. The learned counsel submitted that the other defendants have not been impleaded as party in the first appeal then it appears from the facts of the case that the suit was decreed only against one defendant, i.e., Nainsingh and has not been decreed against defendants no.2 to 9 and, therefore, defendant no.1 did not seek any relief against respondents no.2 to 9. In view of the above reason also, I do not find any merit in this appeal. Hence the appeal of the appellant is dismissed. S.B.Civil Misc. Appeal No.333/94 Vijaysingh & ors. vs. LRs of Late Nainsingh 4 A copy of this order be sent forthwith to the trial court. The trial court may proceed with the trial of the suit expeditiously as this is one of the very old case in the trial court. Since the respondents could not put in appearance before this Court, therefore, the appellants are directed to appear before the trial court on 12.1.2009. The case may be taken up by the trial court on 12.1.2009. If any longer date or short date has been given, then the case be listed by fixing the date 12.1.2009. (PRAKASH TATIA),J. mlt