RSA No.755 of 1985 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.755 of 1985 (O&M) Date of Decision: April 28, 2011 Shri Amarjit Singh .....Appellant v. Shri Hardial Singh and others .....Respondents CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. GRP Singh, Advocate for the appellants. Mr. R.D.Bawa, Advocate for the respondents. ..... RAM CHAND GUPTA, J.(Oral) Heard. Facts relevant for the decision of present regular second appeal are as under: The suit for permanent injunction was filed by Shamsher Singh and his brother Shivdayal Singh, i.e., predecessors-in-interest of the present appellants against their brother Hardial Singh and his sons restraining them from interfering in their possession over the land in dispute. The suit was contested by respondents-defendants. Learned trial Court decreed the suit filed by predecessors-in-interest of present appellants by holding that they are owners and in possession of the property in dispute and defendants are having no right to interfere in their possession. Respondent-defendant no.1 filed appeal against the said judgment and decree before learned Additional District Judge, Ludhiana, in which predecessors-in-interest of the present appellants were proceeded ex parte and the appeal was accepted as ex parte. An application for re-hearing of the appeal after setting aside ex parte order was filed before learned first appellate Court by Shivdayal, one of the original plaintiffs and legal representatives of Shamsher Singh. In the meantime, Shivdayal Singh also died and his legal representatives were RSA No.755 of 1985 (O&M) -2- brought on the record. Learned first appellate Court framed issues on the application for setting aside ex parte judgment and decree and for re-hearing the appeal. Evidence was adduced by both the parties and vide detail judgment dated 16.5.1984, learned appellate Court set aside ex parte judgment and decree subject to payment of Rs.250/- as cost and the appeal was ordered to be re-heard. Thereafter, the appeal was fixed for re- hearing. However, instead of re-hearing the appeal on merit, learned first appellate Court decided the same on the sole ground that cause of action did not survive to present appellants, after death of Shivdayal and Shamsher Singh, while reviewing the earlier order passed by his predecessor on the ground that he had not gone into the said aspect. However, orders vide which legal representatives of Shivdayal and Shamsher Singh were brought on the record had already become final. Respondent-defendant no.1 did not challenge the said orders. Subsequent order setting aside the earlier ex parte decision of the appeal, dated 16.5.1984, had also become final. It was ordered that appeal shall be re-heard. The said order has also not been challenged. Hence, after passing of order dated 16.5.1984, learned first appellate Court should have decided the appeal on merits instead of allowing the same in a summary way, vide impugned order. Hence, there is force in the argument of learned counsel for the appellants that the impugned order dated 25.1.1985 passed by learned Additional District Judge, Ludhiana, allowing the appeal cannot be sustained in the eyes of law. Accordingly the present appeal is accepted and the impugned judgment and decree passed by learned Appellate Court is set aside. Case is remanded to learned first appellate Court with the direction to decide the same on merits after rehearing, as per order dated 16.5.1984. Parties are directed to appear before learned District Judge, Ludhiana, on 27.5.2011. As the matter is very old, learned District Judge, Ludhiana, is also directed to decide the same expeditiously and efforts be made to decide the same within three months. 28.4.2011 (Ram Chand Gupta) meenu Judge RSA No.755 of 1985 (O&M) -3-