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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.8189 OF 2009 (@ SLP(C) No.8216 of 2006)

KANTH SRI & ORS. ....APPELLANTS

VERSUS

MUNNA & ORS. ....RESPONDENTS

O R D E R

Leave granted.

Heard  learned  counsel  appearing  for  the  

parties.

This  appeal  can  be  disposed  of  on  a  very  

short question.  The second appeal was filed by the present  

respondents before the High Court challenging the judgment  

and  decree  of  the  Appellate  Court,  which  had  granted  a  

decree for specific performance of contract for sale.  By  

the impugned order, the High Court had reversed the judgment  

of the Appellate Court and allowed the second appeal.  We  

have been taken through the judgment of the High Court by  

the  learned  counsel  appearing  for  the  appellants.   It  

appears  from  the  said  judgment  that  the  High  Court  had  

proceeded to dispose of the second appeal in the absence of  

any  learned  counsel  appearing  for  the  respondents.   The  

judgment of the High Court shows:

“Heard  the  learned  counsel  for  the

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appellant.  None argued for the respondents.  

Shri  K.N.  Mishra,  learned  counsel  for  the  

respondent  submitted  that  he  has  no  

instructions to argue the appeal.”

We  are  informed  by  the  learned  counsel  

appearing for both the parties that Shri K.N. Mishra could  

not appear for the present respondents because he had not  

filed  vakalatnama  on  behalf  of  the  heirs  and  legal  

representatives  of the deceased respondent.  In fact, he  

had  filed  vakalatnama  on  behalf  of  the  respondent,  who  

subsequently  died.   That  being  the  position,  it  is  now  

admitted position that the second appeal was allowed without  

giving  any  opportunity  of  hearing  to  the  respondents  

therein.  We are, therefore, of the view that an opportunity  

should be given to these respondents to contest the second  

appeal in the High Court.  The impugned order is, therefore,  

set aside, the appeal is restored to its original file and  

the matter is remanded back to the High Court for fresh  

disposal of the Second Appeal No.1242 of 1980, after giving  

opportunity of hearing to the parties and passing a reasoned  

judgment in accordance with law.

Both  sides  agreed  that  no  further  notice  

need to be sent to the respondents regarding fixation of a  

date of hearing of the second appeal by the High Court.  

That being the position, we request the High Court to decide

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the appeal after remand within a period of three months from  

the date of supply of a copy of this order to it.   

The impugned order is accordingly set aside.  

The appeal is allowed to the extent indicated above.  There  

will be no order as to costs.

.........................J. (TARUN CHATTERJEE)          

.........................J. (SURINDER SINGH NIJJAR)     

NEW DELHI, DECEMBER 09, 2009.