Punjab-Haryana High Court
Gian Chand vs Tara Chand Etc on 9 May, 2024
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
227 RSA-3347-1999 (O&M)
Date of Decision : 09.05.2024
GIAN CHAND .... Appellant
VERSUS
TARA CHAND AND ANR .... Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Ravi Girdhwal, Advocate for
Mr. Sanjay Mittal, Advocate for the appellant.
None for respondent No.1.
Service of respondent No.2 dispensed with
vide order dated 29.05.2000.
ALKA SARIN, J. (ORAL)
1. The present appeal has been preferred by the plaintiff-appellant
aggrieved by the judgment and the decree dated 18.10.1994 passed by the
Trial Court and the judgment and the decree dated 28.05.1999 passed by the
First Appellate Court.
2. As per the Office report, respondent No.1 has since expired. No
one has come forward to get themselves impleaded as legal representatives
of deceased respondent No.1. At one stage, Mr. Ajay Jain, Advocate had
put in appearance on behalf of the respondents.
3. Learned counsel for the plaintiff-appellant has referred to Order
XXII Rule 2-A and B of the Code of Civil Procedure, 1908 to contend that it
integrity of this judgment/order.
227 RSA-3347-1999 (O&M) -2-
was incumbent on the legal representatives of deceased respondent No.1 to
have come on to the record once the said respondent has died.
4. Since no one has come forward on behalf of respondent No.1 to
get themselves impleaded as his legal representatives, the present appeal is
being decided ex parte.
5. The short submission made by the learned counsel for the
plaintiff-appellant is that the counsel for the plaintiff had filed an application
for withdrawal which was dismissed by the Court and thereafter the counsel
had pleaded no instructions. Once the counsel had pleaded no instructions
notice should have been served upon the appellants before deciding the case
on merits in the absence of the counsel.
6. Heard.
7. Once the counsel had pleaded no instructions the Court ought
to have issued notice to the appellant before deciding the case on merits.
This Court in the case of Baljit Singh v. Maya Ram [2006(4) RCR Civil
415] has held as under :
"6. As regards the observations of the learned Court
below that there was no evidence to prove the illness for
want of production of record, the learned counsel
placed reliance on the judgment of this Court in Kanshi
Ram v. Haryana State and others, 2004(4) RCR (Civil)
102 : 2004(2) Civil Court Cases 362 (P&H) wherein it
integrity of this judgment/order.
227 RSA-3347-1999 (O&M) -3-
was held that non-examination of doctor or Vaid in
support of assertion of illness alone was not a ground to
reject the explanation. It may also be noticed here that
this Court also came to the conclusion that the party
cannot be made to suffer for the fault of the counsel and
the suit was ordered to be restored. In the present case,
the order dated 6.10.1997 shows that the appellant was
not present in Court when the counsel pleaded no
instructions and therefore, it was incumbent upon the
Court to have issued notice to the parties. Since this was
not done, the order suffers from an illegality which
needs to be set right. It may be mentioned here that the
judgments of this Court relied upon by the counsel for
the respondents are dealing with the cases in the trial
Court where the party is normally required to be present
and the judgments are on the facts of a particular case
and cannot be applied universally as is sought to be
contended by the learned counsel for the respondent."
8. In view of the above the Trial Court ought to have called upon
the appellant before deciding the case on merits.
9. As per the law laid down by a Constitution Bench of the
integrity of this judgment/order.
227 RSA-3347-1999 (O&M) -4-
Hon'ble Supreme Court in the case of Pankajakshi (dead) through LR's &
Ors. vs. Chandrika & Ors. [2016 (6) SCC 157] there is no requirement for
framing of substantial questions of law in the present appeal.
10. In view of the above, the present appeal is allowed; judgments
and decrees passed by the Trial Court and that of the First Appellate Court
are set aside and the matter is remanded back to the successor Court of Sh.
R.S. Virk, HCS, Senior Sub-Judge, Rewari for deciding the same afresh and
in accordance with law. Registry to send copy of this order along with
record of the case to the Court concerned for 24.05.2024. Pending
applications, if any, also stand disposed off.
09.05.2024 (ALKA SARIN)
Aman Jain JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: Yes/No
integrity of this judgment/order.
