Punjab-Haryana High Court
Ruldu vs Noora Etc on 1 July, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:080923
RSA No.1987 of 1994 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1987 of 1994 (O&M)
Date of Order:01.07.2024
Ruldu
.Appellant
Versus
Noora (since deceased) throughg LRs and others
..Respondents
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Aakash Singla, Advocate for the appellant.
Mr. Sunny K.Singla, Advocate for respondents no.6 to 11.
ANIL KSHETARPAL, J
1. In this regular second appeal, defendant no.4, assails the correctness of the judgment passed by the First Appellate Court.
2. In order to comprehend the issues involved in the present case, the relevant facts, in brief, are required to be noticed.
3. The plaintiff filed a suit for grant of decree of declaration that the suit land is joint between the parties and the plaintiff is entitled to declaration that he is the owner and in joint possession to the extent of 11/27 share and further restraining the defendants from alienating his share in any manner.
4. All the parties to the litigation are heirs of a common ancestor Sh. Khazana. In the aforesaid suit, as many as five defendants were made party including the appellant Sh. Ruldu as defendant no.4. Defendant nos.1 and 3 admitted the plaintiff's claim, whereas defendant nos.2 to 4 were proceeded against ex-parte. Defendant no.5 contested the suit. After the 1 of 3 ::: Downloaded on - 20-07-2024 15:21:57 ::: Neutral Citation No:=2024:PHHC:080923 RSA No.1987 of 1994 (O&M) -2- issues were culled out, the parties were permitted to lead evidence. On 08.03.1989, the contesting defendant no.5 admitted the plaintiff's claim. Consequently, an ex-parte decree was passed in favour of the plaintiff. Defendant no.4 filed first appeal which has been dismissed primarily on the ground that he was required to file an application under Order IX Rule 13 CPC. Though, the First Appellate Court has made some passing reference to the merits of the case, however, primarily the appeal filed by the appellant has been dismissed on the ground that he was required to file an application under Order 9 Rule 13 CPC.
5. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paper book along with the scanned copy of the digital record.
6. The learned counsel representing the appellant submits that the defendant who was proceeded against ex-parte has multiple remedies including filing of an appeal before the First Appellate Court if he wants to challenge the judgment and decree of the trial court on merits. He submits that the appeal filed by defendant who was proceeded against ex-parte shall be maintainable under Section 96 of the Code of Civil Procedure, 1908. Hence, the First Appellate Court has erred in dismissing the appellant's appeal.
7. Per contra, the learned counsel representing the respondents submits that some passing reference has been made by the First Appellate Court on the merits of the case, however, after referring to the aforesaid finding he admits that the First Appellate Court has dismissed the appeal on maintainability.
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8. This court has considered the submissions of the learned counsel representing the parties.
9. The defendant who was proceeded against ex-parte in the trial court has the remedy of filing an appeal if he wants to challenge the judgment and decree of the trial court on merits. He also has a remedy to file an application under Order IX Rule 13 CPC to set aside the ex-parte decree, however, his appeal on merits cannot be dismissed on the ground that it is not maintainable.
10. Keeping in view the aforesaid facts and discussion, the judgment passed by the First Appellate Court is set aside while remitting the matter with direction to decide the appeal after considering the case of the parties on merits. This appeal has remained pending for 30 years. Hence, the First Appellate Court is requested to make sincere efforts for expeditious disposal of the first appeal.
11. Disposed of accordingly.
12. The parties through their counsel are directed to appear before the First Appellate Court on 23.07.2024.
13 All the pending miscellaneous applications, if any, are also disposed of.
July 01, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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