R.S.A. No.2174 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** R.S.A. No.2174 of 2008 Date of Decision:21.10.2008 Gurbachan Singh .....Appellant Vs. Harbhajan Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. B.R. Mahajan, Advocate for the appellant. **** HARBANS LAL, J. (Oral) This appeal is directed against the judgment/ decree dated 28.4.2008 passed by the Court of learned Additional District Judge, Tarn Taran, whereby he set aside the judgment/ decree dated 6.9.1995 passed by the Court of learned Additional Senior Sub Judge, Patti and allowed the appeal preferred by Harbhajan Singh, defendant and dismissed the suit for declaration filed by Gurbachan Singh. The brief facts giving rise to the suit are that the plaintiff, Gurbachan Singh is the owner of the suit land which has fallen to his share in the family partition qua which memorandum dated 10.7.1989 was prepared. The defendant, brother of the plaintiff has no concern with the land in suit. On these allegations, the plaintiff filed the suit against Harbhajan Singh for declaration to the effect that he is the owner of the suit land. In answer to the notice, the defendant did not put in his appearance. He was proceeded against ex-parte. After hearing the learned counsel for the plaintiff and examining the ex parte evidence, the learned Additional Senior Sub Judge R.S.A. No.2174 of 2008 -2- Patti, decreed the suit for declaration as prayed for vide his judgment/ decree dated 6.9.1995. Feeling aggrieved therewith, the defendant went up in appeal, which was accepted and the judgment/ decree dated 6.9.1995 was set aside and the suit of the plaintiff was dismissed. Being dissatisfied therewith, the plaintiff carried an appeal to this Court. Vide order dated 3.3.2008, Annexure P.1 passed by this Court in Regular Second Appeal No.865 of 2002, the case was remanded back to the Lower Appellate Court to hear the appeal de novo and decide the same on merits after providing sufficient opportunity to the parties with a further direction that in the event, the Lower Appellate Court finds that the appellant before it is required to be granted opportunity to file written statement and to lead evidence, it will consider the same accordingly and if required remand the case to the trial Court. In compliance with this order dated 3.3.2008, the parties put in their appearance before the learned District Judge, Amritsar on 26.4.2008 when they were directed to appear before the Court of learned Additional District Judge, Tarn Taran at 10:00 A.M. On this date, i.e. 26.4.2008, the parties did not cause their appearance before the above-mentioned Court. Ultimately, the learned Additional District Judge, Tarn Taran proceeded to decide the appeal on 28.4.2008 on merits and vide his impugned judgment/ decree dated 28.4.2008, he as noted supra, set aside the judgment/ decree dated 6.9.1995 passed by the Court of learned Additional Senior Sub Judge, Patti and dismissed the suit of the plaintiff, Gurbachan Singh by allowing the appeal preferred by Harbhajan Singh- defendant. I have heard the learned counsel for the appellant- Gurbachan Singh besides perusing the findings returned by the learned First Appellate R.S.A. No.2174 of 2008 -3- Court in the impugned judgment with due care and circumspection. Mr. B.R. Mahajan, Advocate appearing on behalf of the appellant urged with great eloquence that on 26.4.2008, the parties appeared before the learned District Judge, Amritsar and the case was transferred to Additional District Judge, Tarn Taran who decided the appeal on merits in the absence of the parties as well as their counsels and set aside the judgment/ decree dated 6.9.1995 passed by the learned trial Court. He further puts that the learned counsel for both the parties had noted the wrong date of hearing as 29.4.2008 and the file was received by the learned Additional District Judge, Tarn Taran on 28.4.2008 by transfer and in such circumstances, the parties should have been given notice of transfer of the case as well as opportunity to defend their case. The learned Additional District Judge, Tarn Taran decided the matter in haste, on the same day, without hearing arguments of the learned counsel for the parties. He had no jurisdiction to decide the appeal on merits in the absence of parties as well as their counsels in view of the provisions as enshrined in Order 41 Rule 17 of the Code of Civil Procedure, which envisages that where the appellant is absent, the appeal may be dismissed for non-prosecution and where respondent is absent, the appeal may be heard ex parte. In the present case, neither party was present and that being so, the learned Additional District Judge did not have the jurisdiction to decide the appeal on merits. The same should have been dismissed in default or for non-prosecution and rights of the parties should not have been adjudicated without any assistance from the counsel for the parties. I have given a deep and thoughtful consideration to these submissions. Order 41 Rule 17 of the Code of Civil Procedure reads as R.S.A. No.2174 of 2008 -4- under:- 17. Dismissal of appeal for appellant's default.-- (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. [Explanation.-- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]” It can be culled out from the language of the above referred explanation appended to Order 41 Rule 17 ibid., that an appeal on merits cannot be dismissed without hearing the counsel, whereas in the instant case as emanates from the impugned judgment, the learned Additional District Judge, Tarn Taran proceeded to dispose of appeal on merits in the absence of the parties as well as their respective counsels. Thus, obviously the impugned judgment is abhorrent to the letter and spirit of above-mentioned explanation. Without sojourning any longer on this short point, the impugned judgment/ decree is set aside and the case is remanded back to the Court of learned Additional District Judge, Tarn Taran with a direction to afford an opportunity of being heard to the respective counsels of the parties and then decide the same on merits. If required in the interest of justice, the opportunity may be afforded to the defendant to file written statement and to lead evidence by remitting the case to the learned trial Court. The appellant through his counsel is directed to put in his appearance before the learned Additional District Judge, Tarn Taran on 28.11.2008 at 10:00 a.m. The First Appellate Court would issue notice to the defendant/ respondent so as to provide an opportunity of being heard to him. Registry is directed to R.S.A. No.2174 of 2008 -5- transmit a certified copy of this judgment to the Additional District Judge, Tarn Taran well before the above-mentioned date. The appellant may get certified copy of this order dasti on payment of requisite charges. October 21, 2008 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No