In CR-8351-2017 (O&M)-PUNJ HC- P&H HC directs First Appellate Court to re-decide appeal, relies on Order 41 Rule 21 of CPC which enables Appellate Court to rehear appeal which was heard ex-parte and judgment was pronounced Justice Anil Kshetarpal [14-07-2022]

Read Order: Kulmeet Singh and another v. Manjit Singh and Others

Monika Rahar

Chandigarh, August 2, 2022:  In light of the provisions of Order 41 Rule 21 of the Code of Civil Procedure, 1908 which enables the Appellate Court to rehear the appeal which was heard ex-parte and judgment was pronounced, the High Court of Punjab and Haryana has directed the First Appellate Court to re-decide the appeal after hearing both the parties. 

The Bench of Justice Anil Kshetarpal arrived at the above-mentioned verdict considering the fact that on the very first mistake/default on part of the counsel for the petitioners, who was otherwise regularly appearing before the First Appellate Court, the lower Court decided the case on merits in the absence of the petitioners, resulting in reversal of the decree of the Trial Court. 

“In the facts of the present case, the Ist Appellate Court has taken a narrow view in the matter. The rights of the parties with respect to the immovable property have been decided. In such circumstances, the Courts ought to have granted an opportunity to the petitioners to contest the case on merits“, held the Court.

The petitioners prayed for a rehearing of the first appeal which was decided in their absence. The First Appellate Court accepted the appeal filed by the respondents while reversing the judgment of the trial Court. 

The application was filed by the petitioners for setting aside the exparte decree. The First Appellate Court, after framing issues, dismissed the application on the ground that the petitioners were served with the notice of the first appeal. The Court also took an adverse view on the matter as Sh. Kulmeet Singh (one of the applicants) did not appear for cross-examination.

The petitioners asserted that their uncle died and their grandmother was seriously ill.

From a perusal of the orders passed by the First Appellate Court, the Court observed that on the very first mistake, the Court decided the case on merits resulting in reversal of the decree.

Further, the Court added that Order 41 Rule 21 of the CPC does enable the Appellate Court to rehear the appeal which was heard ex-parte and judgment was pronounced. 

In the facts of the present case, the Court was of the considered view that the First Appellate Court took a narrow view in the matter. 

“The rights of the parties with respect to the immovable property have been decided. In such circumstances, the Courts ought to have granted an opportunity to the petitioners to contest the case on merits“, opined the Court. 

Thus, keeping in view the aforesaid facts, the order under challenge was set aside and the first appeal was restored to its original number. The First Appellate Court was requested by the Court to re-decide the appeal after hearing both the parties within two months from the date of appearance of the parties. 

The parties, through their counsel, were directed to appear before the First Appellate Court. However, the Court imposed a cost of Rs. 5,000/-.