In the High Court of Punjab and Haryana at Chandigarh ..... F.A.O. No.487 of 2011 (O & M) .... Date of decision: 28.7.2011 M/s Expess Promoters Pvt. Ltd. ...Appellant v. Kadam Singh and others ........Respondents ..... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? Present: Mr. Alok Jain, Advocate for the appellant. Mr. N.K. Sharma, Advocate for respondents No.1 and 2. ..... Mohinder Pal, J. This is an appeal against the order dated 30.10.2010 passed by the learned Additional District Judge, Faridabad whereby application under Order 41, Rule 21 read with Section 151 PC has been dismissed. Earlier the respondents filed a suit in the Court of learned Civil Judge (Junior Division), Faridabad. In this suit the defendant/appellant was proceeded against ex parte. In an appeal the appellate Court vide its decision passed earlier accepted the appeal. As the appellant was proceeded against ex parte in the trial Court, no notice was sent to it. It is case of the F.A.O. No.487 of 2011 (O & M) [2] appellant that in the year 2008 it came to know regarding decision of the appeal and accordingly moved an application under Order 41, Rule 21 CPC for setting aside the ex parte order which has been dismissed by the appellate Court and hence the present appeal. Learned counsel for the appellant has referred to Order 41 Rule 21 CPC and has submitted that as the appeal has been heard ex parte and the judgment is pronounced against the respondents, it has every right to challenge the same and was required to be summoned before deciding this matter by the appellate Court. On the other hand learned counsel for the respondents has put reliance on the amended provisions contained in Order 41 Rule 21 which read as follows:- “21. Re-hearing on application of respondent against whom ex parte decree made.- Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.” He has also submitted that the land in question has been sold by the appellant. Even if the land has been sold that cannot be considered as a reason to deprive the appellant of his right of being heard in a case. I have given my thoughtful consideration to the submissions made by both the counsel. Admittedly, the appellant was proceeded against F.A.O. No.487 of 2011 (O & M) [3] ex parte in trial Court and the suit of the respondents has been dismissed. The appeal has been decided without affording an opportunity of hearing to the appellant mainly on the ground that it was proceeded ex parte in the trial Court. There is a procedure prescribed to deal with the cases where the defendant/appellant is proceeded against ex parte in a suit. Order 41 Rule 12 CPC lays down the procedure for hearing the appeal, according to which the appellate Court shall fix a day for hearing the appeal. However, Rule 14 talks about the publication and service of notice of day for hearing the appeal under which notice is sent by the appellate Court to the Court from whose decree the appeal is preferred and has to be served on the respondent or his pleader in the appellate Court in the manner provided for the service on a defendant of the summons to appear and answer. A perusal of the proceedings before the appellate Court shows that none of these provisions have been followed while fixing the case for final adjudication. If the provisions contained in the Code of Civil Procedure for sending summons to the respondent has not been followed the valuable right of the respondent/appellant to defend his case has been taken away. This is particularly, so when the suit of the respondent/plaintiff in the trial Court was dismissed. Otherwise, also the provisions in the Civil Procedure Code are to lay down the guide-lines for welfare of the litigants and not to deprive them of their right to contest a suit. For the aforementioned reasons the ex parte impugned order passed by the appellate Court is hereby set aside. The appellant is left at liberty to move a fresh application under Order 41 Rule 21 CPC before the Court below who would decide afresh keeping in view the above provisions. F.A.O. No.487 of 2011 (O & M) [4] The present FAO stands disposed of. July 28, 2011. (Mohinder Pal) Judge *hsp*