Punjab-Haryana High Court
Mohinder Singh And Ors. vs Karnail Singh And Ors. on 6 August, 2001
Author: N.K. Sud
Bench: N.K. Sud
JUDGMENT 1. N.K. Sud, J.
1. This appeal is directed against the order of the Additional District Judge, Ludhiana, rejecting the application filed by the appellants under Order 41 Rule 21, Code of Civil Procedure, for rehearing the appeal filed on behalf of the plaintiff-respondents.
2. The plaintiff-respondents had filed the suit for possession by way of specific performance of the contract of sale of land measuring 67 kanlas 2 marlas or in the alternalive the suit for recovery of Rs. 60,000/- as refund of earnest money and damages along with interest. The suit was decreed by the trial court vide order dated 27.2.1999 whereby the alternative prayer for recovery of Rs. 60,000/- was decreed and the petitioners were held liable to pay Rs. 60,000/- alongwith interest at the rate of 6% from the date of filing of the suit till the actual realisation. Respondent No. I filed an appeal before the Appellate Authority, Ludhiana, who vide order dated 29.7.1999 allowed the same. The judgment and decree of the trial court was modified and the appellant was held entitled to possession by way of specific performance of the agreement to sell dated 25.6.1986 regarding land measuring 67 kanals 2 marlas on payment of balance sale consideration as per the terms of the agreement.Admittedly, no notice in the appeal had been given to the petitioners. The petitioners, therefore, moved an application under Order 41 Rule 21, Code of Civil Procedure, for rehearing of the appeal on the ground that they had not been issued any notice or heard by the appellate authority. This application has been rejected vide the impugned order on the ground that since the petitioners had been proceeded ex-parte before the trial court, there was no need to serve them by the appellate authority also.
3. I have heard the counsel for the parties. The order of the appellate authority cannot be sustained.
4. It is a basic requirement of law as well as of the principles of equity and natural justice that a person against whom an order is to be passed or a person whose rights are likely to be adversely affected by an order, has to be granted an opportunity of being heard. The appellate authority could not possibly have proceeded to decide the appeal without granting an opportunity of being heard to the petitioner Although no provision of law has been mentioned by the appellate authority for holding that if a person has been proceeded ex-parte before the trial Court, he need not be served in the appellate proceedings as well, the learned counsel for the respondents has referred to Order 41 Rule 14 Sub-rule (4), Code of Civil Procedure, to support the view of the appellate authority. On the other hand, the learned counsel for the appellants states that this rule only deals with the proceedings incidental to an appeal and not to the appeal itself.
Sub-rule (4) of Order 41 Rule 14 reads as under:-
"(4) Notwithstanding anything to the contrary contained in Sub-rule (1), it shall notbe necessary to serve notice of any proceeding incidental to an appeal on any respondent orher than a person impleaded for the first time in the Appellate Court, unless he has appeared and fied an address for the service in the Court of first instance or has appeared in the appeal,"
A plain reading of this provision docs support the contention raised on behalf of the appellants. This rule indeed refers only to proceedings incidental to an appeal and not to the procecdings in appeal. This view finds support from the judgment of the Andhra Pradesh High Court reported in L. Sooraiah v. L Somaraju, 1988(2) Civil Court Cases 176. This decision is on alt fours with the case in hand.
5. Accordingly, the orders dated 18.1.2001 in Misc. Application No.27 dated 28.10.1999 and dated 29.7.1999 in Civil Appeal no. 64 dated 12.5.1999 passed by the Addl. District Judge, Ludhiana, are set aside. The Addl. District Judge shall now take up the appeal afresh and decide the same in accordance with law after giving an opportunity of being heard to the appellants. It is hoped that the appellate authority will dispose of the appeal in an expeditious manner.
The appeal is accordingly allowed.