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PETITIONER: BHOLA NATH MISRA

       Vs.

RESPONDENT: RAJENDRA PANDEY & ANR.

DATE OF JUDGMENT:       20/02/1997

BENCH: K. RAMASWAMY, S. SAGHIR AHMAD

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      This appeal  by special  leave arises from the judgment of the  learned single  Judge of  this Allahabad High Court, made on  April 21,  1978 confirming  the decree of the trial Court and  appellate Court  granting a  perpetual injunction against the  appellant and  the second defendant restraining them from making any construction on the land in dispute, as shown in  the map  annexed to  the plaint and also mandatory injunction to  demolish the  construction in  so far  as  it relates  to  the  construction  on  such  land.  The  second defendant remained  ex-parte in  the  trial  Court  and  the decree as  against him had become final. The appellant/first defendant carried  the matter  in appeal which was confirmed and the  second appeal  was filed. Counsel appearing for the appellant made  a statement  on December 6, 1976 that he was not seeking  any relief against the second defendant and the decree as  against the second defendant having become final, he was  not proposing  to take  out any service of notice on the second  defendant. As  a result, the Court noted on that date that  "The effect  thereof should  be  brought  to  the notice of  the court"  when the  appeal was  to be  heard on merits. Consequently,  when  the  matter  had  come  up  for hearing on  merits,  the  learned  Judge  proceeded  on  the premise that  the decree  as against  the  second  defendant being joint  and inseperable,  the same had become final, as against the  second defendant; it was abated and so it would not be  proper to  go into  the merits  in the  matter. As a consequence, the  appeal also  was dismissed  without  going into the  merits, as  contended by the appellant. Thus, this appeal.      Palpably, the  view taken  by the  High  Court  is  not correct. The  question of  abatement of  the appeal does not arise because  this is  not a  case of  any of  the  parties expiring pending  proceedings followed  by omission to bring the legal representatives on record. In that situation only, the appeal  gets abated.  But when the decree as against one of the  defendants  has  become  final  and  is  either  not contested or  is not  carried in  appeal, the decree becomes enforceable as against the defendant who suffers the decree. But when  one of  the defendants contests the correctness of

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the decree,  necessarily, it  has to be examined whether the finding recorded  and the  decree passed by the trial Court, as affirmed  by the appellate Court, is correct in law. But, unfortunately,  the   High  Court  has  not  gone  into  the question. The  only course  then open  is remittance  of the matter for  consideration  by  the  High  Court  on  merits. Unfortunately, this  Court has  dispensed with  the printing and directed  the appeal  to be  heard on  the basis  of the material placed in the SLP pater book, The appellant has not placed on record the judgment and decree of either the trial Court or  the appellate Court. Under these circumstances, we are not in a position to know what were the reasons given by the trial  Court and  as affirmed  by the appellate Court in granting the  decree  against  the  appellant.  Under  these circumstances, we  think that  no useful  purpose  would  be served in remitting the matter after two decades.      The appeal is, accordingly, dismissed. No costs.