R.S.A. No.1713 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No.1713 of 2010 Date of Decision:21.07.2011 Hari Chand ......Appellant Versus Sombir and others .....Respondents CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR. Present: Mr.Jagjeet Beniwal, Advocate, for the appellant. Mr.Neeraj Kumar, Advocate, for respondent Nos.1 to 4. **** M EHINDER S INGH S ULLAR , J.(oral) Concisely, the facts, which require to be noticed for the limited purpose of deciding the sole controversy, involved in the instant appeal and emanating from the record are, that Hari Chand son of Amla-appellant-plaintiff (hereinafter to be referred as “the plaintiff”) filed the suit for a decree of declaration with a consequential relief of permanent injunction, restraining Sombir, Lokesh and Krishan-respondent Nos.1 to 3-contesting defendant Nos.1 to 3(for brevity “the defendants”), from ousting him(plaintiff) and defendant Nos.4 to 6, from their joint possession of the suit land. 2. Having completed all the codal formalities, the trial Court decreed the suit of the plaintiff vide judgment and decree dated 09.03.2004. 3. Aggrieved by the decision of the trial Court, contesting defendant Nos.1 to 3 filed Civil Appeal No.113 of 2004. As Hari Chand-plaintiff did not appear, therefore, ex parte proceedings were ordered against him in the appeal. The first Appellate Court accepted the appeal in the absence of the plaintiff, by virtue of judgment and decree dated 17.11.2005. R.S.A. No.1713 of 2010 2 4. As soon as, plaintiff-Hari Chand came to know about the ex parte decree, he filed an application for setting aside the ex parte order dated 08.10.2004, ex parte judgment and decree dated 17.11.2005 and for rehearing the appeal, invoking the provisions of Order 41 Rule 21 CPC. The contesting defendants contested the claim of the plaintiff and filed the reply. 5. The first Appellate Court accepted the application, set aside the ex parte decree and at the same time, again allowed the appeal of the contesting defendants, by virtue of same impugned order(judgment) dated 01.05.2009 in this relevant connection. 6. Appellant-plaintiff Hari Chand did not feel satisfied with the impugned order & judgment and decree and preferred the present regular second appeal. 7. After hearing the learned counsel for the parties, going through the record and legal provisions with their valuable assistance and after deep consideration of the entire matter, to my mind, the instant appeal deserves to be accepted in this context. 8. As is evident from the record that, in the wake of application under Order 41 Rule 21 CPC, filed by the appellant-plaintiff, the first Appellate Court has set aside the earlier ex parte judgment and decree dated 17.11.2005, by means of impugned order dated 01.05.2009, which in substance is, as under:- “After giving my thoughtful consideration to the arguments advanced by learned counsel for the parties and law cited by them in support of their contentions, I am of the view that my learned predecessor while passing order dated 08.10.04 did not comply with the mandatory provisions of Order 5 Rule 15 and 17 CPC because as per the said provisions of law, the service of the summons can be made on the adult member of the defendant family, provide the defendant was absent from his resident at the time, secondly, that there was no likelihood of his being found at his residence within reasonable time and lastly, the defendant was not having any agent empowered to accept the service of the summons on behalf of the defendant. In my opinion, my learned predecessor has relied upon the report of the R.S.A. No.1713 of 2010 3 process server while passing the impugned order. He did not make any finding regarding the fact that there was no likelihood of defendant being present at his residence within reasonable time or that he was having no agent empowered to accept the service of the summons on his behalf. Consequently, the impugned order dated 08.10.04 in which the applicant/respondent was proceeded against ex parte stands set aside along with the impugned judgment passed in appeal.” 9. Thus, it would be seen that although, the first Appellate Court has accepted the application of the plaintiff under Order 41 Rule 21 CPC and set aside the earlier ex parte judgment and decree dated 17.11.2005, but at the same time, the first Appellate Court again immediately allowed the appeal of the contesting defendants in a very novel and hasty manner, by way of same impugned order (judgment) dated 01.05.2009. Here, to me, the first Appellate Court has slipped into deep legal error in this regard. 10. As is clear that, Order 41 Rule 21 CPC postulates that where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he satisfies the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him. 11. Hence, a conjoint reading of this provision would reveal that the word “re-hearing” is significant in this respect. Once, in the wake of application, the earlier judgment and decree are set aside and the original appeal was restored, then the first Appellate Court ought to have fixed the main appeal for re-hearing for some other date, to enable the plaintiff to effectively argue the matter, instead of jumping in haste, to decide the main appeal, by way of impugned compound order passed by the first Appellate Court on the application, for setting aside the ex parte judgment and decree. Therefore, to my mind, the first Appellate Court has committed the material procedural irregularity, which has adversely affected the R.S.A. No.1713 of 2010 4 right of the plaintiff and inculcated & perpetuated manifest injustice to the plaintiff in this relevant connection. The plaintiff is entitled to a fair right of effective hearing of the appeal. To me, it would be in the interest and justice would be sub- served, if the matter is remanded back to the first Appellate Court. 12. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of hearing of the appeal, the instant regular second appeal is accepted. The impugned order(judgment) dated 01.05.2009, as it relates to final disposal of the appeal, is hereby set aside. 13. The matter is remitted back to the first Appellate Court, for deciding the appeal afresh, after affording adequate opportunity of hearing to the parties. 14. The parties through their counsel are directed to appear before the first Appellate Court on 29.09.2011, for further proceedings. 15. Needless to mention that, nothing observed here-in-above, would reflect, in any manner, on the merits of the case, as the same has been so recorded for a limited purpose of deciding the core controversy involved in this appeal. July 21, 2011 (MEHINDER SINGH SULLAR) seema JUDGE