R.S.A.No. 698 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 698 of 2009 (O&M) Date of decision: 13.10.2009 Surinder Mann and another ......Appellants Versus Rajesh Kumar and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Rameshwar Malik, Advocate, for the appellants. Mr.R.K.Gupta, Advocate, for respondent No.1. **** SABINA, J. Plaintiff Rajesh Kumar filed a suit for specific performance, which was dismissed by the Civil Judge (Jr.Divn.), Panipat vide judgment and decree dated 4.9.2007. In appeal, the said judgment and decree were set aside by the Additional District Judge, Panipat vide judgment and decree dated 13.2.2008. Hence, the present appeal by defendants No.4 and 5. R.S.A.No. 698 of 2009 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- “2. As per case of the plaintiff, defendant No.2 through her attorney Smt.Promila (defendant) entered into an agreement dated 12.4.2006 Ex.P-2 to sell her house to him as detailed and described in para No.1 of the plaint for a sum of Rs.2,22,500/-. The entire amount was paid at the time of execution of the agreement and it was agreed that he shall be entitled to get the sale deed executed and registered when it would be convenient to him. Further case of the plaintiff is that on 17.4.2006, defendants No.1 and 2 along with Sat Narain, husband of defendant No.2, came to his house and requested to purchase necessary stamp papers to get the sale deed executed and registered. On their asking, he purchased stamp papers worth Rs.8,900/- and got sale deed typed thereon from a petition writer, but when it was presented before the Sub Registrar for registration, defendants no. 1 and 2 refused to sign the same and later on, defendant No.2 sold the said house to defendants No.3 to 7 vide registered sale deed dated 9.5.2006 Ex.P1. With these averments, the plaintiff brought the present suit to seek a decree for specific performance of the agreement claiming that possession of the disputed house was already with him R.S.A.No. 698 of 2009 (O&M) 3 as it was handed over to him at the time of execution of the agreement. 3. Notice of the suit was given to the defendants but they did not appear to contest the same, therefore, they were proceeded against ex parte.” Learned counsel for the appellants has submitted that the suit of the plaintiff was dismissed in ex parte and the appeal filed by the plaintiff had been allowed by the Additional District Judge without issuing any notice to the appellants. Learned counsel for the respondent, on the other hand, has submitted that as per amendment made by the State of Punjab in Order 41 Rule 14 of the Code of Civil Procedure, the service of the appeal on the appellants could be dispensed with. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be allowed. The substantial question of law involved in this case is “ Whether the appellants-defendant, who were ex parte in the trial Court were required to be served in appeal or whether their services could be dispensed with?” The suit of the plaintiff for specific performance was dismissed by the trial Court in ex parte. The plaintiff went up in appeal. In appeal, the following order was passed by the learned Additional District Judge on 7.11.2007:- “Notice to the respondents could not be issued R.S.A.No. 698 of 2009 (O&M) 4 as the appellant did not file the spare copies of grounds of appeal. It is submitted by the learned counsel for the appellant that respondents were ex parte before learned trial Court, therefore, no notice is required to be given to them. I agree with the learned counsel for the appellant. As the respondents are already ex parte before learned trial Court, no notice to them is required to be given. Now, case to come up on 24.12.2007 for arguments.” Thus, admittedly no notice was issued to the appellants- defendants in appeal by the learned Additional District Judge. The appeal was, however, allowed. Order 41 rule 14 CPC along with Punjab amendments reads as under:- “14.Publication and service of notice of day for hearing appeal- (1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appeal and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice. R.S.A.No. 698 of 2009 (O&M) 5 (2) Appellate Court may itself cause notice to be served- Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or on his pleader under the provisions above referred to. (3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal. (4) Notwithstanding anything to the contrary contained in sub rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal. (5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from defending it.” Punjab.- In Order XLI, in rule 14- (i) in sub-rule (2), insert the following proviso, namely:- “Provided that the notice shall be served on the Advocate of the party who appeared in the subordinate Court where the matter is still R.S.A.No. 698 of 2009 (O&M) 6 pending” (ii) After sub-rule (2) insert the following sub-rule namely:- “(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 legal representative from appearing to contest the appeal” Thus, a perusal of the rule reveals that in case the Appellate Court wants to dispense with the service of 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 then it has also been provided that the Court R.S.A.No. 698 of 2009 (O&M) 7 may require notice of the appeal to be published in any newspaper or any other such manner as it may direct. Thus, the rule does not confer an absolute power on the Appellate Court to dispense with the service upon the respondents, who were ex parte before the lower Court but gives an option to the Appellate Court to dispense with the 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. The rule does not envisage total non service or dispense with the service completely upon the respondents. This intention could not be of the rule as it would bi violative of the very doctrine of Audi Altram Partem. It is the duty of the Court to impart justice to the parties. It is also the duty of the Court that hearing is given to the parties before lis is decided between them. In these circumstances, the intention of the Rule cannot be to provide absolute discretion to the Court to serve a party or not to serve. This would run contrary to the rule of law and justice delivery system. Hence, the decision of the lower Appellate Court to the effect that the notice was not required to be served on the appellants regarding the appeal as they were ex parte before the trial Court is illegal. The lower Appellate Court should have ordered service of the respondents by publication in the newspaper or any other permissible mode if the service of the appellants was liable to be dispensed with in ordinary course on the ground that they were ex parte before the R.S.A.No. 698 of 2009 (O&M) 8 trial Court. Since no notice was served on the appellants by the lower Appellate Court, they have suffered manifest injustice. A decree has been passed against the appellants without giving them any hearing. Thus, the substantial qustion of law that arises in this appeal is answered accordingly. Consequently, this appeal is allowed. The impugned judgment and decree passed by the lower Appellate Court are set aside and the learned Additional District Judge is directed to decide the appeal afresh in accordance with law. The parties are directed to appeal before the trial Court on 9.11.2009. Records of the lower Courts be sent back forthwith. (SABINA) JUDGE October 13, 2009 anita