RSA No.4331 of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4331 of 1999 Date of Decision: 02.02.2010. Satnam Singh and others .……Appellants Versus Roop Lal and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. B. R. Mahajan, Advocate for the appellants. Ms. Alka Chatrath, Advocate for respondent No.1. L. N. MITTAL, J (ORAL) Defendant Nos.2 to 5 and 7 have filed the instant second appeal. They are also legal representatives of defendant No.6 Lakhwinder Singh since deceased. Roop Lal respondent No.1 filed suit for possession of suit land measuring 15 kanals 06 marlas, seeking possession from defendant Nos.2 to 7 and also sought permanent injunction restraining defendant No.1/respondent No.2 Phula Rani from alienating the suit land or any part thereof. Plaintiff and defendant Nos.8 to 10 (respondent Nos.3 to 5) are sons of Balwant Ram whereas defendant No.1-Phula Rani is widow of Balwant Ram. The plaintiff earlier filed civil suit No.136 of 1986 against defendants No.1 and 8 to 10 (respondent Nos.2 to 5 herein) seeking declaration that plaintiff is in joint possession of the suit land and other land as coparcener along with defendant Nos.8 to 10. In that suit, the plaintiff also claimed permanent injunction restraining defendant No.1 from alienating suit land alleging that she RSA No.4331 of 1999 -2- had no right, title or interest therein. The said suit was decreed vide judgment and decree dated 18.11.1988 Ex.P-1 and Ex.P-2. However, during pendency of the said suit, defendant No.1 vide sale deed dated 19.10.1987 sold 15 kanals 6 marlas land in suit to defendant Nos.2 to 7 i.e appellants and Lakhwinder Singh since deceased, who took forcible possession of the suit land. Since the said sale took place during the pendency of the previous suit, defendant Nos.2 to 7 are also bound by decree dated 18.11.1988 on account of doctrine of lis pendens. The plaintiff claimed decree for possession of the suit land against defendant Nos.2 to 7 and decree for injunction against defendant No.1. Learned Sub Judge, Ist Class, Tarn Taran vide ex parte judgment and decree dated 29.10.1991 dismissed the suit of the plaintiff. The plaintiff preferred first appeal against the said judgment and decree wherein cross-objections were filed by defendant Nos.2 to 7. Learned Additional District Judge, Amritsar vide judgment and decree dated 04.08.1999 dismissed the cross-objections preferred by defendant Nos.2 to 7 and allowed the appeal preferred by the plaintiff and decreed the suit of the plaintiff. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned counsel for the parties and perused the case file. Although arguments were advanced on the merits of the rival claims, yet the instant appeal has to be allowed on a short point and the case has to be remanded to the trial Court. Perusal of the trial Court file reveals that defendants were not served through RSA No.4331 of 1999 -3- ordinary summons. The summonses were also sent by registered post, but the same were received back with the report that nothing could be learnt about the defendants. Thereafter service by publication in newspaper was ordered and ultimately on the basis of publication made in newspaper, all the defendants were proceeded ex parte by the trial Court. However, it is the specific case of the appellants in cross-objections before the lower appellate Court that they were not served in the trial Court. Perusal of the trial Court file substantiates the said plea of the appellants. They were neither served with ordinary summons nor by registered post. Since they were served by publication only, their cross-objections could not be dismissed on the ground that the judgment of the trial Court was in favour of the defendants. The lower appellate Court has dismissed the cross-objections filed by the defendant Nos.2 to 7 by simply observing that judgment of the trial Court was in favour of the said cross-objectors and, therefore, they were not to go to the trial Court to put up their claim. This approach of lower Appellate Court is completely illegal, perverse and unsustainable because if defendant Nos.2 to 7 had got opportunity to contest the suit in the trial Court, they would have been able to file written statement to plead their case and also to lead evidence in support of their case. However, the appellants did not get any such opportunity in the trial Court and the suit went undefended on their behalf. In view of the aforesaid, the instant second appeal is allowed and judgments and decrees of both the Courts below are set aside. The suit is remanded to the trial Court for fresh decision in accordance with law. Appellants shall file their written statement at RSA No.4331 of 1999 -4- the earliest in the trial Court and not later than 18.03.2010. Since the suit is of the year 1989, the trial Court shall decide the suit expeditiously and preferably within one year from the date of receipt of certified copy of this order. Records of the lower Court be sent back immediately. Parties are directed to appear before the Trial Court on 04.03.2010. ( L. N. MITTAL ) JUDGE 02.02.2010 A. Kaundal