Kanth Sri & Ors vs Munna & Ors

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 2

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 3

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.