FAO No. 5469 of 2004 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No. 5469 of 2004 (O&M) Date of decision: 7.12.2009 Chander Bhan and others .. Appellants v. Bhaskarli and others .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Amit Jain, Advocate for the appellants. Mr. Shailender Jain, Advocate for respondent No. 11. ... Rajesh Bindal J. Learned counsel for the appellants pointed out that initially on 7.2.2005 and subsequently on 26.8.2008, notice was issued to respondent No. 11, who is the only contesting respondent. Service of respondent No. 11 is complete. Challenge in the present appeal is to the order dated 8.9.2003, passed by the learned court below, whereby the appeal filed by the appellants was dismissed in default. Much facts are not required to be noticed considering the issue involved in the present appeal, where the predecessors-in-interest of the appellants filed an appeal against the judgment and decree dated 16.11.1992, which was accepted vide judgment and decree dated 23.5.1996 of the learned lower appellate court. Respondent No. 11, who was the subsequent buyer of the property from the respondents, filed application before the learned lower appellate court under Order 41 Rule 21 CPC for re-hearing of the appeal with the contention that before accepting the appeal, he was not heard though his rights were going to be effected. The learned court below vide order dated 8.9.2003 accepted the prayer made by respondent No. 11 for re-hearing of the appeal. However, on the same date, in the absence of counsel for the appellants, the main appeal was dismissed in default. It is this order, which is impugned in the present appeal. Learned counsel for the appellants submitted that as the main appeal filed by the appellants was not listed for hearing on the date when the same was FAO No. 5469 of 2004 [2] dismissed in default, the order passed by the learned court below deserves to be set aside and opportunity deserves to be granted to the appellants to address arguments afresh in the appeal. On the other hand, learned counsel for respondent No. 11 submitted that considering the fact that the appeal was merely dismissed in default, the appellants could very well file application for restoration thereof before the court below and the appeal should not be entertained. After hearing learned counsel for the parties, in my opinion, the present appeal deserves to be allowed. Considering the fact that on the date when the case was fixed for hearing, i.e., 8.9.2003, as is evident from a perusal of the impugned order, it was only the application under Order 41 Rule 21 CPC filed by respondent No. 11, which was being considered by the learned court below. The same was accepted. The judgment and decree dated 23.5.1996 was set aside and the appeal was to be re-heard. However, on the same date, noticing that counsel for the appellants was not present, the appeal itself was dismissed in default. In my opinion, on the date when the application only was under consideration before the learned court below, the appeal could not have been dismissed in default and the same was required to be fixed for hearing. As the appellants had already been served in the application filed by respondent No. 11 seeking re-hearing of the appeal, the appellants may or may not have been issued fresh notice in the appeal. As this issue is not required to be gone into in the present case, but still the same could not be taken up on the same date and dismissed in default. Considering the aforesaid facts, the appeal is allowed. The impugned order dated 8.9.2003 dismissing the appeal in default is set aside. Parties through their counsels are directed to appear before the learned District Judge, Gurgaon on 23.1.2010 for fresh hearing of the appeal filed by the appellants on merits. The learned District Judge, Gurgaon will either keep the appeal with himself or entrust the same to any of the Additional District Judges. As the dispute in the present case is quite old, the appeal may be disposed of expeditiously. (Rajesh Bindal) Judge 7.12.2009 mk