Without giving an opportunity to the defendant/respondent - no second appeal be heard and reversed to the prejudice of the party.
We find much force in the submission of the learned counsel for the appellant-defendant. Since the High Court has reversed the judgment of the First Appellate Court, in our considered view, the High Court ought to have afforded an opportunity of hearing to the
appellant-defendant before disposing of the matter.We, therefore, allow this appeal, set-aside the impugned judgment and remit the matter back to the High Court for
consideration of the matter afresh.
1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4578 OF 2019
(Arising out SLP (C) No.29830/2018)
SWARAN SINGH Appellant
VERSUS
CHANAN SINGH @ CHARAN SINGH Respondent
J U D G M E N T
R. BANUMATHI, J.
1. Leave granted.
2. The appellant-defendant has preferred this appeal against the
judgment and order dated 01.03.2018 passed by the the High Court of
Punjab & Haryana at Chandigarh in R.S.A. No.906 of 1993(O&M)
alleging that the second appeal was allowed by the High Court
reversing the judgment of the First Appellate Court without
affording opportunity of hearing to the appellant-defendant.
3. The grievance of the appellant is that while reversing the
judgment of the First Appellate Court, the High Court has not
afforded an opportunity of hearing to the appellant and, therefore,
the appellant has preferred this appeal.
2
4. The appellant-defendant and the respondent-plaintiff are real
brothers. The respondent-plaintiff filed a Civil Suit No.396 of
1983 seeking declaration that the judgment and decree passed in
Civil Suit No.1153/78, titled �Swaran Singh v. Chanan Singh� is
null and void and the same is liable to be set-aside. The
respondent-plaintiff further prayed for possession of the suit land
on the basis of his title and other consequential reliefs.
5. The respondent-plaintiff alleged that the decree in Civil Suit
No.1153/78 was not registered as per Section 17 of the Registration
Act, 1908 and is, therefore, violative of the provisions of the
Transfer of Property Act, 1882. The Civil Suit No.396 of 1983 was
decreed by judgment and decree dated 30.07.1988, which was
challenged by the appellant-defendant by filing Civil Appeal
No.12/13 of 1990 before the First Appellate Court.
6. The First Appellate Court by its order dated 21.01.1993
allowed the appeal and set-aside the judgment and decree of the
Trial Court.
7. Being aggrieved, the respondent-plaintiff preferred the appeal
being RSA No.906 of 1993 (O&M) before the High Court. The High
Court by the impugned judgment dated 01.03.2018 allowed the second
appeal thereby reversing the judgment of the First Appellate Court
passed in Civil Appeal No.12/13 of 1990 and restored the judgment
of the Trial Court.
3
8. By perusal of the impugned judgment, we find that only the
learned counsel for the respondent-plaintiff was heard. There is
nothing to indicate that the learned counsel appearing for the
appellant-defendant was heard.
9. Learned counsel appearing for the appellant-defendant submits
that the counsel who was then on record for the appellant was
elevated to the Bench and, therefore, there was no representation
for the appellant-defendant. Learned counsel for the appellant-
defendant submitted that considering this aspect the appellant
ought to have been served with notice calling upon him to engage a
lawyer. It was further submitted that since the High Court has
reversed the judgment and order of the First Appellate Court which
causes serious prejudice to the appellant, the matter may be
remitted back to the High Court for fresh consideration.
10. We find much force in the submission of the learned counsel
for the appellant-defendant. Since the High Court has reversed the
judgment of the First Appellate Court, in our considered view, the
High Court ought to have afforded an opportunity of hearing to the
appellant-defendant before disposing of the matter.
11. We, therefore, allow this appeal, set-aside the impugned
judgment and remit the matter back to the High Court for
consideration of the matter afresh.
4
12. We request the High Court to take up the R.S.A. No.906 of 1993
(O&M) at an early date and afford sufficient opportunity to both
parties and dispose of the same expeditiously and preferably within
a period of four months.
13. In the facts and circumstances of the case, there will be no
order as to costs.
.................................J.
[R. BANUMATHI]
.................................J.
[ S. ABDUL NAZEER ]
NEW DELHI;
APRIL 30, 2019
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ITEM NO.20 COURT NO.7 SECTION IV-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (C) No.29830/2018
(Arising out of impugned final judgment and order dated 01-03-2018
in RSA No.906/1993 passed by the High Court Of Punjab & Haryana At
Chandigarh)
SWARAN SINGH Petitioner
VERSUS
CHANAN SINGH @ CHARAN SINGH Respondent
(IA No.123779/2018 � For exemption from filing OT; IA
No.137327/2018 � For permission to file Additional
Documents/Facts/Annexures; IA No.9851/2019 � For Stay; and, IA
No.38910/2019 � For permission to file Additional Documents/Facts/
Annexures)
Date : 30-04-2019 This matter was called on for hearing today.
CORAM :
HON'BLE MRS. JUSTICE R. BANUMATHI
HON'BLE MR. JUSTICE S. ABDUL NAZEER
For Petitioner(s) Mr. Gurinder Singh Gill, Adv.
Mr. P.P. Nayak, Adv.
Mr. Bhupinder, Adv.
Ms. Vandana Hooda, Adv.
Mr. Ajay Pal, AOR
For Respondent(s) Ms. Tatini Basu, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The Civil Appeal is allowed, in terms of the signed order.
Pending application(s), if any, shall stand disposed of.
(MUKESH NASA) (PARVEEN KUMARI PASRICHA)
COURT MASTER BRANCH OFFICER
(Signed Order is placed on the File)
