CSA – 1 59/2008 - Smt. Bali Bai Vs. Smt. Ganeshi bai : Judgment dt.22.7.08 1/2 S.B. CIVIL SECOND APPEAL NO.159/2008 Smt. Bali Bai Vs. Smt. Ganeshi bai Date of order : 22nd July, 2008 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Suresh Shrimali for the appellant. Mr. Manoj Bohra for Mr. Rajesh Joshi for the respondent. --------- 1. Heard learned counsels. 2. This appeal arises out of the decree of injunction passed against the defendant on 29th March, 1994 which was confirmed by the appellate court on 4.2.1997. 3. Learned counsel for the appellant submits that one of the defendant Chhagan Lal, husband of the present appellant Smt. Bali Bai had expired during the pendency of the trial and the Advocate concerned, who appeared for the defendant pleaded no instructions in the matter before the court and, therefore, the suit was decreed ex- parte. He submits that after pleading no instruction by the Advocate concerned, the learned trial court ought to have sent fresh summons to the remaining defendant or other LRs of the deceased defendant. But since the same was not done and the Advocate concerned did not pursue the matter on behalf of the defendant, the said decree was passed without any opportunity to the defendant for arguing the said case before the learned trial court. 4. Learned counsel further submits that on merit also since the land in question was belonging to Municipality, the injunction granted in favour of the plaintiff was wrong. CSA – 1 59/2008 - Smt. Bali Bai Vs. Smt. Ganeshi bai : Judgment dt.22.7.08 2/2 5. Be that as it may, without going into the merits of the case, this Court is of the opinion that learned trial court ought to have sent fresh summons to the other defendants or LRs of the deceased defendant Chhagan Lal after the Advocate appearing for the defendant pleaded no instructions. The other defendant, the present appellant appears to be an illiterate lady, widow of the said deceased defendant, who could not of her own defend the said suit before the trial court and pursue the said matter. 6. In the facts and circumstances of the case, this appeal is allowed and the judgment dt. 4.2.1997 and 29.3.1994 of the Courts below are set aside and the suit is restored to the trial court for trial de novo after fresh summons to both the parties. No costs. [ DR. VINEET KOTHARI ], J. item No.26 babulal/-