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CASE NO.: Appeal (civil)  5663 of 2006

PETITIONER: Desa Singh

RESPONDENT: Ajit Singh & Ors

DATE OF JUDGMENT: 09/12/n\022& J U D G M E N T (Arising out of SLP (C) Nos. 17165-66 of 2004)  

Dr. ARIJIT PASAYAT, J

       Leave granted.

       Challenge in these appeals is to the correctness of  judgment rendered by a learned Single Judge of the Punjab  and Haryana High Court dismissing the second appeal filed.   Though appeal was decided in the absence of learned counsel  for the appellant yet the High Court proceeded to decide the  matter on merits.

Learned counsel for the appellant submitted that an  application in terms of Order XLI of the Rule 27 of the Code of  Civil Procedure, 1908 (in short the ’CPC’) was filed.  Shri  Ishwari Parshad, Advocate was initially engaged by the  appellant at the time of admission.  He retired from practice  due to his old age.  Thereafter another learned counsel Sh.  Susheel Kumar Goyal  alongwith his son Sh. S.B. Goyal were  engaged.  Unfortunately, Sh. S.B. Goyal expired in 2001 and  thereafter Sh. Sushil Kumar Goyal also retired from practice.   When the matter was listed on 22.10.2002 there was no  appearance on behalf of the appellant because of the aforesaid  unforeseen circumstances.  That is how there was no  representation when the matter was listed.  Unfortunately, the  High Court without referring to all the relevant aspects  placed  for consideration, decided the matter on merits.

Learned counsel for the respondents submitted that  though the appellant was not represented, the High Court  looked into the records and decided the matter.

As the factual scenario which is almost undisputed goes  to show, there was no representation when the matter was  taken up before the High Court.  Because of circumstances  beyond the control of the appellants, there was no appearance  and the matter was decided against them.  Normally when the  appellant is not represented, the High Court would dismiss it  for default and not go into the merits in detail. That is   precisely what has not been done in the present case.

In the peculiar circumstances, we set aside the order of  the High Court and remit the matter to the High Court for  fresh hearing on merits.

Learned counsel for the appellant stated that another

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counsel shall be engaged within a period of one month.  The  matter shall be listed before the appropriate Bench after a  period of six weeks.

Appeals are disposed of to the aforesaid extent with no  order as to costs.