IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2738 of 2009(O&M) Date of Decision: September 13, 2011. Smt. Krishna Chauhan and another. ...... APPELLANT (s) Versus Smt. Yashpal Kaur and others. ...... RESPONDENT (s) CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. B.R.Mahajan, Advocate for the appellants. Mr. J.R.Mittal, Senior Advocate with Mr. Kashmir Singh, Advocate for respondents no.1 to 3. ***** RAM CHAND GUPTA, J.(Oral) The present regular second appeal has been filed against judgment and decree dated 13.05.2008 passed by learned Additional District Judge, Rohtak accepting the appeal filed by respondents-plaintiffs against judgment and decree dated 26.07.2006 passed by the then learned Civil Judge (Senior Division), Rohtak vide which suit filed by respondents-plaintiffs was dismissed. RSA No.2738 of 2009 I have heard learned counsel for the parties and have gone through the whole record carefully including the judgments passed by learned courts below. Briefly stated, respondent/defendant no.3 was owner of the property in dispute. He sold the same to defendants no.1 and 2 vide registered sale deed dated 04.05.1998. Respondents-plaintiffs claim possession of the same as tenants under defendant no.3 and hence, claimed superior right of pre-emption as against defendants no.1 and 2. Suit was not contested by original defendants no.1 and 2. They were proceeded ex parte. However, suit filed by respondents-plaintiffs was dismissed by learned trial Court vide judgment and decree dated 26.07.2006. Respondents-plaintiffs filed appeal against the said judgment and decree. In the appeal no notice was issued to present appellants-defendants on the plea that they were already ex parte before learned trial Court. However, judgment passed by the trial Court was reversed by learned first appellate Court by accepting the appeal and suit filed by respondents-plaintiffs was decreed. It has been contended by learned counsel for appellants that thought they were proceeded ex parte before the trial court and however, the suit was decided in their favour by learned trial court and hence, before reversing the finding recorded by the trial court, learned first appellate Court should have issued the notice to present appellants-defendants. It is further contended that even additional evidence was allowed to be produced by respondents-plaintiffs without issuing notice to present appellants-defendants and on the basis of said additional evidence, appeal was accepted and the suit filed by respondents-defendants was decreed. 2 RSA No.2738 of 2009 On the other hand, it has been contended by learned counsel for the respondents-plaintiffs that as per amended provision of sub-rule (3) of Rule 14 of Order 41 of Code of Civil Procedure as amended by this Court, there is no necessity of issuing any notice to present appellants-defendants as they did not appear before learned trial Court and did not contest the suit. It is pertinent to reproduce the amended provision of relevant sub-rule (3) of Rule 14 of Order 41 CPC as amended by this Court:- “Punjab, Haryana and Chandigarh – (i) Add the following as sub-rule (3): (3) it shall be in the discretion of the appellate Court to make an order, at any stage of the appeal whether on the application of any party or on its own motion, dispensing with service of such notice on any respondent who did not appear, either at the hearing in the Court whose decree is complained of, or at any proceedings subsequent to the decree of that Court, or on the legal representatives of any such respondent: Provided that – (a) that Court may require notice of the appeal to be published in any newspapers or in such other manner as it may direct; (b) no such order shall preclude any such respondent or any representative from appearing to contest the appeal.” The contention of learned counsel for respondents-plaintiffs is that the said provision was held to be valid even after amendment of CPC by Code of Civil Procedure (Amendment) Act, 1976 (Act No.104 of 1976) as has been held by this Court in Gian Singh v. Joginder Singh and others, 1978 PLR 298. So far as this legal proposition is concerned there is no dispute. However, this Court is to see as to whether the aforementioned provision is absolute for the appellate Court to dispense with the service and 3 RSA No.2738 of 2009 as to whether appellate Court is not required to give notice to appellants- defendants even if some additional evidence is allowed to be taken and even if on that basis decree passed by learned trial Court is sought to be reversed. Similar matter came for consideration before this Court in Roshan Lal and others v. Kewal Singh and others, 2008(1) RCR (Civil) 679 and this Court while discussing sub-rule (3) of Rule 14 of Order 41 of CPC as amended by this Court observed as under: “11. Apart to dispense with the service in a particular case is one thing but to attribute and impute knowledge of proceedings and decree to the party, who has not been served is another thing. Even Sub Rule 3 of Rule 14 of Order 41 of C.P.C., provides that to dispense with the service upon a party, who did not appear before the lower Court, is in the discretion of the Appellate Curt. This discretion is further circumscribed by the proviso to the Rule, which inter-alia requires notice of appeal to be published in any news paper or in such other manner as the Court may direct before discretion to dispense with the notice is exercised under the given circumstances. Thus, the Rule does not confer an absolute right to the Appellate Court to dispense with the service upon the respondents, who were absent before the lower Court but gives an option to the Appellate Court to dispense with service by prescribed modes provided they are put to notice through publication in newspaper or any other means as may be deemed proper by the Court. This rule does not envisage total non-service or dispensing with service completely upon the respondents, as this itself will be unlawful and unconstitutional and violative of the very Doctrine of “Audi Altram Partem” and also other statutory provisions contained in the Code of Civil Procedure, which require the parties to the lis to be put to notice and provided an opportunity for contesting any claim against them. Introduction of this Rule was never intended to provide 4 RSA No.2738 of 2009 absolute discretion to the Court to serve a party or not to serve. Such a situation would be ante-thesis to the very rule of law, judicial propriety and judicial wisdom and above all justice delivery itself. 12. The interpretation sought to be placed by Mr. Jain to the provisions of Order 41 Rule 14(3) of C.P.C. is just not acceptable and does not appeal to my judicial conscience. Even Clause (b) of Sub Rule 3 does not create any impediment for the defendants/respondents from appearing to contest the appeal at any later stage. This is unimaginable that a party who was never put to notice is expected to know the proceedings and decision of the Court. 13. In view of the peculiar facts of the present case, it was otherwise obligatory upon the first Appellate Court to have served the respondents (appellants herein). It is the admitted fact that the suit filed by respondent No. l was dismissed by the trial Court even though, the defendants were proceeded ex-parte. Assuming that the defendants had the knowledge of the suit having been served, but with the dismissal of the suit, they are presumed to be happy and were not required to follow the appeal as the decision of the trial Court was in their favour. There was every reason for them to be complacent. Under this scenario, the decision of the lower Appellate Court not to serve the respondents cannot be termed anything, but a blatant and patent illegality. It was statutory obligation of the lower Appellate Court to have ordered service of the respondents by publication in the news paper or any other permissible mode, if service in the ordinary course was sought to be dispensed with on the ground that they were absent before the trial Court. Non-service of notice by the lower Appellate Court, itself constitutes sufficient cause to condone the delay in filing the appeal. It has been held by Hon'ble Supreme Court in N. Balakrishnan v. M. Krishnamurthy 1999(2) RCR (Civil) 578: (1998)7 SCC 123 that 5 RSA No.2738 of 2009 once sufficient cause is shown, the length of period of delay is irrelevant.” A bare perusal of sub-rule (3) of Rule 14 of Order 41 CPC shows that the same is not absolute in nature. It gives discretion to the appellate Court to dispense with the service of a party who did not appear before the lower Court. The discretion is further circumscribed by proviso to sub-rule (3), which inter-alia, requires notice of the appeal to be published in any newspaper or in such other manner as the Court may direct before exercising discretion to dispense with the service in the given circumstances. In the present case, no such course was adopted by learned first appellate Court. Rather service upon appellants-defendants was dispense with just at the time of admission of the appeal by observing that there is no need for issuing summons to appellants-defendants. Still further when an application under Order 41 Rule 27 CPC was filed by respondents-plaintiffs for adducing additional evidence, no notice of the said application was also given to appellants-defendants and the application was allowed without notice to appellants-defendants and evidence was also taken ex parte and the judgment and decree passed by learned trial Court was reversed and the suit of the respondents-plaintiffs was decreed without hearing the present appellants-defendants. In view of these facts, this cannot be said to be intention of the amended sub-rule (3) of Rule 14 of Order 41 CPC that an adverse order can be passed against the party without hearing him at all. It is basic requirement of law as well as principles of equity and natural justice that a person against whom an order is sought to be passed or the person, whose right is to be 6 RSA No.2738 of 2009 adversely effected by such order, has to be granted an opportunity of being heard. Hence, in view of the aforementioned facts, there is force in the argument of learned counsel for appellants-defendants that the impugned judgment and decree passed by passed by learned first appellate Court cannot be sustained in the eyes of law. From these facts, following substantial question of law arises for consideration in this regular second appeal:- Whether learned first appellate Court has committed illegality in allowing the application for additional evidence filed by respondents-plaintiffs without giving any notice to present appellants-defendants and in reversing the judgment and decree passed by learned trial Court and in decreeing the suit filed by respondents-plaintiffs without hearing appellants-defendants? In view of above discussion, the said question of law is decided in favour of present appellants-defendants and against respondents-plaintiffs. In consequence thereof, the present regular second appeal is accepted. The impugned judgment and decree passed by learned first appellate Court is set aside. Learned first appellate Court is directed to decide the application filed under Order 41 Rule 27 CPC and the appeal filed by respondents- plaintiffs afresh after hearing both the parties. Parties are directed to appear before learned first appellate Court on 14.10.2011 for further proceedings in accordance with the law. In view of the fact that present litigation is pending since the year 1999, learned first appellate Court is directed to decide the same 7 RSA No.2738 of 2009 expeditiously and efforts be made to decide the same within six months from the next date of hearing. ( RAM CHAND GUPTA ) September 13, 2011 JUDGE ‘om’ 8