* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 630 OF 2008 A N D SECOND APPEAL NO. 799 OF 2007 1. Shankar Bapu Mahajan and Ors. ...........Appellants V/S. 1. Ramdas Dattu Patil and anr. ...............Respondents ------------ Mr. Umesh Mankapure, adv.for appellants. Mr. Arun Palekar, adv. for respondents. CORAM:- SMT. R.P. SONDURBALDOTA, J. DATED :- 25th JANUARY, 2010. P.C. :- 1. This is a common order on the above two appeals which have been filed by the same appellants. For the reasons stated hereinafter, the appeals are required to be allowed and the matter remanded to the District Court for fresh hearing of the First Appeals filed by both the sides. 2. Respondent no.1 filed Special Civil Suit No.8 of 1986 for specific performance of the agreement of sale of the suit property dated 21st February, 1989 executed by one Shankar, the predecessor of the appellants. The consideration under the agreement was Rs.60,000/- and respondent no.1 claimed * 2 * to have paid Rs.30,000/- towards part consideration. The appellants defended the suit contending that their father, Shankar was addicted to liquor and the alleged agreement was executed by him under the influence of liquor. It was also contended that there was no legal necessity for Shankar to sell the property belonging to the joint family. The appellants further claimed that the price allegedly paid by respondent no.1 for the property was inadequate and the appellants had never consented to the agreement of sale. By the order dated 28th September, 1990 the Suit was disposed off rejecting the prayer of respondent no.1 for specific performance but directing the appellants to pay Rs. 30,000/- with interest to respondent no.1 within a period of 3 months from the decree. 3. Respondent no.1 challenged the decree by filing First Appeal No. 416 of 1991 before this court, whereas, the appellants preferred Appeal No.466 of 1990 before the District Court, Sangli. On enhancement of jurisdiction of the district court in pursuance of the amendment to Section 26 of Bombay Civil Court Act, 1869, First Appeal No.416 of 1991 was transferred to the District court, Sangli and the same was renumberead as Regular Civil Appeal No. 330 of 2000. Though both the appeals preferred against the same judgment and decree were pending before the District Court, Sangli and the parties to the appeals were served with the notices, thus having knowledge about pendency of appeals of respective parties, for the reasons unknown, the same were not tagged together * 3 * and Regular Civil Appeal No. 330 of 2000 filed by respondent no.1 was heard and disposed off by the order dated 10th November, 2006. The appeal was disposed off ex-parte in the absence of the appellants by keeping the other appeal pending. The appellants then preferred Second Appeal No.799 of 2007 to challenge the order on Regular Civil Appeal No.330 of 2000 contending that the District Court has wrongly disposed off only one out of the two appeals pending on its file. 4. In the meantime, the Regular Civil Appeal No.466 of 1990 filed by the appellants came to be dismissed for default. Later, the same came to be restored to file. On coming to know of pendency of the said appeal, this court by it s order dated 9 ’ th April, 2008 passed in Second Appeal No.799 of 2007 directed the District Court to decide Regular Civil Appeal No.466 of 1990 on merits by keeping all the points open. The District Court, instead of considering the appeal on its merit, disposed the same off by applying the principle of merger without touching the merits of the case. Therefore, the appellants filed Second Appeal No.630 of 2008. 5. The above facts show that the appellants have not had any opportunity whatsoever of hearing in the First Appeals before the District Court. There is no doubt that there have apparently been some lapses on the part of the appellants in attending to the court. However, considering the nature of the suit and the defence taken by the appellants, in my considered opinion, it is * 4 * desirable that they be given an opportunity of being heard on merits. A decision on merits after hearing both the sides would also be beneficial, in the event of the mattter being carried further by any of the parties by preferring Second Appeal. Respondent no.1, however needs to be compensated by costs. Hence, both the Appeals are allowed. The order dated 10th November 2006 passed in Regular Civil Appeal No.330 of 2000 and 29th August, 2008 passed in Regular Civil Appeal No.466 of 1990 are set aside. The District Court is directed to hear Regular Civil Appeal No.330 of 2000 and Regular Civil Appeal No. 466 of 1990 afresh and decide the same within a period of 6 months from today. The appellants are directed to pay costs quantified at Rs.15,000/- in one set to respondent no.1. [SMT. R.P. SONDURBALDOTA, J]