Punjab-Haryana High Court
M/S Aa Enterprises vs Er.J.S. Sekhon on 15 January, 2009
Author: Rakesh Kumar Jain
Bench: Rakesh Kumar Jain
FAO No.1583 of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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FAO No.1583 of 2007
Date of decision: 16.1.2009
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M/s AA Enterprises . . . . Appellants
Vs.
Er.J.S. Sekhon, Purchase Officer-V, PSEB, Patiala and another
. . . . Respondents
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CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Harkesh Manuja, Advocate for the appellant.
Mr.Ashok Chaudhary, Advocate for
Mr.H.S. Sidhu, Advocate for respondents.
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RAKESH KUMAR JAIN J.(ORAL)
Shorn of unnecessary details, the facts of the case are that an arbitral award was passed by the sole arbitrator on 1.1.1996 awarding a claim of Rs.7,43,355.20 P. to the respondent. It was made rule of the Court on 21.11.2001. Aggrieved against the said order, the present appellant filed an appeal before the First Appellate Court, in which the counsel appearing on behalf of the appellant pleaded no instructions on behalf of the appellant, therefore, the First Appellate Court, dismissed the objection in default for non-prosecution vide order dated 12.2.2004. On coming to know about this fact, the present appellant filed an application under Order 41 Rule 19 of CPC for seeking restoration of the FAO No.1583 of 2007 -2- appeal having been dismissed in default on 12.2.2004. The learned First Appellate Court vide its order dated 26.3.2007 has dismissed the said application. Counsel for the appellant has vehemently contended that the appellant had engaged his counsel and paid him fee but because of his pleading no instructions before the Court below, they remained unrepresented, as a result of which the case was dismissed in default for non-prosecution. It is further contended that in a case where a counsel pleads no instructions, the Court should issue actual date notice to the party concerned in spite of immediately dismissing the appeal.
Learned Counsel for the appellant has relied upon the decision of the Supreme Court in case of "Mailkiat Singh and another vs. Joginder Singh and others" 1998(2) Civil Court Cases(SC) 83 and decision of this Court in case of "Usha Rani vs. Prem Singh" 2005(2) Civil Court Cases(P&H) 492, "Jangir Singh Vs. M/s Prem Motors" 2000 (3) Civil Court Cases(P&H) 491, "Surinder Kumar Vs. Ram Nath & another" 2000 (2) Civil Court Cases(P&H) 1, "Baljit Singh vs. Maya Ram and others" 2006 (4) RCR 415 .
After hearing learned counsel for the parties, I am of the view that the learned appellate Court has committed palpable error while dismissing the application filed for restoration because whenever, counsel appearing on behalf of the party pleads no instructions, the Court should serve actual date notice upon the party concerned who had engaged that Advocate.
Besides, the learned counsel for the appellant has also brought to the notice of this Court that at the time of notice of FAO No.1583 of 2007 -3- motion, execution of the award was stayed provided the appellant deposit the entire principal amount with the Trial Court. It was also ordered that the same shall be released to the respondent in whose favour award has been passed. It is submitted that pursuant to order dated 20.4.2007, principal amount has already been deposited in the Trial Court.
In view of above, the present appeal is allowed. The impugned order dated 26.3.2007 is set aside. The matter is remanded back to the First Appellate Court for deciding the appeal on merits. No costs.
(RAKESH KUMAR JAIN)
JANUARY 16, 2009 JUDGE
vivek