R.S.A. No.3916 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.3916 of 2007 Date of Decision:08.12.2008 Suba Singh .....Appellant Vs. Surain Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. A.D.S. Jattana, Advocate for the appellant. Mr. Sudeep Mahajan, Advocate for the respondent. **** JUDGMENT HARBANS LAL, J. This appeal is directed against the judgment/ decree dated 30.5.2007 passed by the Court of learned Additional District Judge (Adhoc) Fast Track Court, Gurdaspur whereby he dismissed the appeal preferred by the defendant against the judgment/ decree dated 29.4.2003 rendered by the Court of learned Civil Judge (Junior Division), Gurdaspur vide which he decreed the suit for possession by way of specific performance of the agreement Ex.P.1 subject to the deposit of the remaining amount by the plaintiff within a period of two months from the date of decree. The facts which form the backdrop of the suit are that the defendant is the owner in possession of the disputed land on the basis of family settlement. On 31.12.1998, he executed an agreement to sell the land in dispute for a sum of Rs.1 lac and received Rs.70,800/- as earnest money. As agreed upon, the sale deed was to be executed and registered on or R.S.A. No.3916 of 2007 -2- before 30.6.1999 on payment of the balance sale consideration. On the aforesaid date, the plaintiff asked the defendant to execute and register the sale deed as he was ready and willing to perform his part of the contract, but the latter did not turn up. Thereafter, the plaintiff served a notice upon the defendant on 4.4.2001 calling upon him to execute and register the sale deed in pursuance of the aforesaid sale agreement. The latter did not turn up. On these allegations, this suit has been filed for possession as owner by means of specific performance of the sale agreement in question. In the alternative, prayer has been made for passing decree for the recovery of Rs.1 lac with interest at the rate of 18% per annum. In his written statement, the defendant inter-alia has repudiated execution of the sale agreement in favour of the plaintiff as well as receipt of earnest money. The following issues were framed by the learned trial Court:- 1) Whether the suit is not maintainable in the present form? OPD 2) Whether the suit is bad for misjoinder of necessary parties? OPD 3) Whether the suit is not properly valued for the purposes of court fee and jurisdiction? 4) Whether the plaintiff is entitled to possession by way of specific performance of the agreement of sale dt. 31.12.98? OPP 5) Whether the plaintiff is entitled to alternative relief of recovery of Rs.1,00,000/- as prayed for? OPP 6) Relief. As recorded in the trial Court's judgment, after hearing the R.S.A. No.3916 of 2007 -3- learned counsel for the parties and examining the evidence on record, the suit was decreed in the terms as noted supra. Feeling aggrieved therewith, the defendant went up in appeal, which was dismissed by the learned First Appellate Court. Being dissatisfied therewith, the defendant has preferred this second appeal. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. The following substantial questions of law arise for determination by this Court:- (i) Whether the appellant should suffer on account of negligence on the part of his counsel? (ii) Whether the appellant/ defendant has been afforded the reasonable opportunity to cross examine the PWs. Mr. A.D.S. Jattana, Advocate appearing on behalf of the appellant assailed the judgments recorded by both the Courts below by urging with great eloquence that as is borne out from the trial Court's ordersheet dated 13.3.2003, the affidavits of three witnesses to be examined by the plaintiff were tendered and their copies were supplied. Of these, one was examined and Court time being over, the remaining two could not be cross-examined. They were bound down for recording their cross- examination on 24.3.2003. On that day, the Presiding Officer being on leave, the case was taken up on the next date, i.e., 25.3.2003 on which date, the Presiding Officer discharged the remaining two witnesses and closed the evidence of the plaintiff by observing that the learned counsel for the defendant has not turned up till 3:00 P.M and he has sent only message through his Clerk that he does not want to cross-examine the witnesses R.S.A. No.3916 of 2007 -4- present in the Court in the absence of his client, which is no ground for adjournment and that being so, the defendant is being proceeded against ex parte. On the next day, i.e., 26.4.2003, on learning about his having been proceeded against ex parte, the defendant approached his counsel and moved an application for setting aside the ex-parte order by pleading that due to his own ill health, he could not put in his appearance. The notice of this application was served upon the opposite party for the date already fixed, i.e., 29.4.2003 on which date, the application was dismissed and after hearing the arguments, the suit was decreed on that very day, i.e., 29.4.2003. The Presiding Officer soon after dismissal of the aforesaid application decreed the suit in a haste manner. Thus, the defendant- appellant has been adequately prejudiced in his right without his own fault. Sequelly, the case is liable to be remanded back. In response, Mr. Sudeep Mahajan, Advocate representing the respondent argued that the order-sheets to which Mr. Jattana has referred clearly indicates that on receipt of the message from the counsel for the defendant through his Clerk, the ex parte proceedings order was passed. The defendant- appellant cannot take the advantage of his own negligence and that being so, the judgments rendered by both the Courts below are liable to be maintained. I have given a deep and thoughtful consideration to the rival contentions. By no stretch of speculation, the learned counsel who was conducting the case on behalf of the defendant could be expected to send a message through his Clerk that he does not wish to cross-examine the present witnesses. Admittedly, out of three PWs in attendance in the Court on 13.3.2003, one was cross-examined. If the remaining two witnesses R.S.A. No.3916 of 2007 -5- were not required to be cross-examined, the learned counsel for the defendant would have given up these witnesses on 13.3.2003 instead of getting them bound down for the next date. On the next very day, the appellant moved the application for setting aside the ex parte order. The same was dismissed by observing that “no doubt the defendant might be ill, but it was the duty of his counsel to appear in the Court on 29.4.2003”. On the same day, the suit was decreed. These orders passed with quick succession gives an inkling that the Presiding Officer was bent upon decreeing the suit. He has shown unjust and undue haste in this behalf. Seemingly, the learned First Appellate Court too did not take care mind that the defendant has been allowed to suffer, merely because of remissness on the part of his counsel. It is an acknowledged principle of law that a party should not be allowed to suffer because of negligence on his/ her counsel's part. If the judgment passed by the trial Court smacks of certain material irregularities or illegalities, the First Appellate Court is obligated to get at the bottom of the matter and to dispose of the matter in the background of facts as also law. In the words of Lord Hewart, “It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The litigants come by pinning all hopes on the Court – a temple of justice to get justice. The quack dispensation of justice, ought not to be allowed to hold sway in the name of quick justice. If the learned First Appellate Court had not decided the appeal in a casual manner or in utmost hurry and had gone into the fact that the civil suit has been decided by the learned Lower Court by adopting a casual approach and that too within a span of well-nigh one week, if counted from 13.3.2003 onwards and delivered the goods as per the R.S.A. No.3916 of 2007 -6- desideratum of law, the money which the appellant expended in approaching this Court would have been saved. Normally, in the situation as is under consideration, the ex-parte proceedings order is set aside to secure the ends of justice by mulcting the party at fault with costs, which is a panacea. To scuttle, the attempt of the appellant, if any, to pose a challenge to the order dismissing the application before a proper forum, the learned trial Court decided the matter with undue haste. In the words of Dr. Cyrus Das “Justice was a consumer product and must therefore meet the test of confidence, reliability and dependability like any other product if it was to survive market scrutiny. Justice is the foremost human right and the first constitutional promise. The Court of District Judge/ Additional District Judge is a Court of fact. If the District Judge/ Additional District Judge by taking requisite pains corrects errors in the lower Court's judgment, the time, money and energy of the poor litigants can be saved. As follows from the above discussion, the appellant had to suffer initially because of the negligence on his counsel's part as well as the cynical hurry exhibited by the learned trial Court. It is beyond cavil that the appellant should not suffer on account of negligence on the part of his counsel. He has also been deprived of his valuable right to cross-examine the witnesses inasmuch as he was not afforded the reasonable opportunity. In the result, the impugned judgments/ decrees are hereby set aside and the case is remanded back to the trial Court for deciding the same afresh after giving one opportunity to the defendant- appellant to cross- examine the remaining witnesses, whose affidavits were tendered on 13.3.2003 and to afford one opportunity more to the plaintiff to lead more evidence, if he so desired and on closure of his evidence, only two R.S.A. No.3916 of 2007 -7- opportunities shall be granted to the defendant- appellant to let in his evidence. The dates shall be fixed by the trial Court. To compensate the plaintiff- respondent, the costs are quantified at Rs.3,000/- which shall be tendered by the defendant- appellant before the trial Court on 9.1.2009. If tendered, this amount shall be given to the plaintiff- respondent. If the defendant- appellant failed to tender the same on the aforesaid date, in that eventuality, his appeal shall be deemed to have been dismissed by this Court. The parties through their respective counsels are directed to put in their appearance before the trial Court on 9.1.2009. The Registry is directed to transmit a copy of this judgment to the trial Court well before the said date. Disposed of accordingly. December 08, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No