Kulmeet Singh And Another v. Manjit Singh And Others

Kulmeet Singh And Another v. Manjit Singh And Others

(High Court Of Punjab And Haryana)

CR-8351-2017 (O&M) | 14-07-2022

ANIL KSHETARPAL , J.

1. The petitioners pray for rehearing of the first appeal which was decided in their absence. The Ist Appellate Court has accepted the appeal filed by the respondents vide judgment dated 07.08.2015 while reversing the judgment of the trial Court. Undoubtedly, the petitioners should have filed an application under Order 41 Rule 21 CPC rather than filing an application under Order 9 Rule 13 CPC.

2. The application was filed by the petitioners on 04.09.2015 for setting aside the exparte decree. The Ist Appellate Court, after framing issues, dismissed the application on the ground that the petitioners were served with the notice of the first appeal for 05.10.2012. The Court also took an adverse view in the matter as Sh. Kulmeet Singh (one of the applicant) did not appear for cross-examination.

3. The petitioners have asserted that their uncle Sh.Kewal Singh died on 22.07.2015 and their grandmother was seriously ill.

4. Heard learned counsel representing the parties at length and with their able assistance perused the paper-book.

5. From a perusal of the orders passed by the Ist Appellate Court on various dates of hearing, it is evident that learned counsel representing the petitioners sought an adjournment only once i.e. on 28.01.2014. Thereafter, the appeal was either adjourned by the Court itself or on the request of learned counsel representing the appellants before the Ist Appellate Court.

6. It is not in dispute that the petitioners, who were respondents before the Ist Appellate Court, did engage a counsel who was regularly appearing in the case. In other words, on the very first mistake, the Court has decided the case on merits resulting in reversal of the decree.

7. Order 41 Rule 21 of the Code of Civil Procedure, 1908 do enable the Appellate Court to rehear the appeal which was heard exparte and judgment was pronounced. In the facts of the present case, the Ist Appellate Court has taken a narrow view in the matter. The rights of the parties with respect to the immovable property have been decided. In such circumstances, the Courts ought to have granted an opportunity to the petitioners to contest the case on merits.

6. Keeping in view the aforesaid facts, the order under challenge is set aside. The first appeal is restored to its original number. The Ist Appellate Court is requested to re-decide the appeal after hearing both the parties within two months from the date of appearance of the parties. The parties through their counsel are directed to appear before the Ist Appellate Court on 29.07.2022. This opportunity shall be subject to payment of costs of Rs.5,000/-.

7. Disposed of.

Advocate List
Bench
  • HON'BLE MR. JUSTICE ANIL KSHETARPAL
Eq Citations
  • NON-REPORTABLE
  • LQ/PunjHC/2022/15364
Head Note

A. Civil Procedure Code, 1908 — Or. 41 Rr. 21 and 22 and Or. 9 R. 13 — Exparte decree — Setting aside — Application for — Proper forum — Application filed in Appellate Court — Whether proper — Petitioners prayed for rehearing of first appeal which was decided in their absence — Ist Appellate Court accepted appeal filed by respondents vide judgment dt. 07.08.2015 while reversing judgment of trial Court — Petitioners should have filed application under Or. 41 R. 21 CPC rather than filing application under Or. 9 R. 13 CPC — Ist Appellate Court, after framing issues, dismissed application on ground that petitioners were served with notice of first appeal for 05.10.2012 — Court also took adverse view in matter as Sh. Kulmeet Singh (one of applicant) did not appear for cross-examination — Petitioners asserted that their uncle Sh. Kewal Singh died on 22.07.2015 and their grandmother was seriously ill — Held, Or. 41 R. 21 of CPC do enable Appellate Court to rehear appeal which was heard exparte and judgment was pronounced — In facts of present case, Ist Appellate Court has taken a narrow view in matter — Rights of parties with respect to immovable property have been decided — In such circumstances, Courts ought to have granted an opportunity to petitioners to contest case on merits — Order under challenge set aside — First appeal is restored to its original number — Ist Appellate Court is requested to re-decide appeal after hearing both parties within two months from date of appearance of parties — Costs of Rs. 5000/- (Para 7) B. Civil Suits — Exparte decree — Setting aside — Application for — Proper forum — Application filed in Appellate Court — Whether proper — Held, Or. 41 R. 21 of CPC do enable Appellate Court to rehear appeal which was heard exparte and judgment was pronounced — In facts of present case, Ist Appellate Court has taken a narrow view in matter — Rights of parties with respect to immovable property have been decided — In such circumstances, Courts ought to have granted an opportunity to petitioners to contest case on merits — Order under challenge set aside — First appeal is restored to its original number — Ist Appellate Court is requested to re-decide appeal after hearing both parties within two months from date of appearance of parties — Costs of Rs. 5000/- (Para 7)