Desasingh v. Ajit Singh and Ors.

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. Arijit Pasayat
S. H. Kapadia
Judgment Date: 2006-12-08
Court Decision / Holding: The High Court’s order was set aside and the matter remitted to the High Court for a fresh hearing on merits, with directions that new counsel be engaged within one month and the matter be listed before the appropriate Bench after six weeks. The appeals were disposed of to that extent with no order as to costs.
Final Disposition: Appeals disposed of.

Parties to the Case

Appellants / Petitioners

Desasingh

Respondents

Ajit Singh and Ors.

Legal Representation & Advocates

Counsels for Petitioners

• Amrit Lal Jain
• Dhiraj
• P.N. Puri

Counsels for Respondents

• Ajay Jain
• Jinendra Jain
• G. Ravi Shanker
• Kamlendra Mishra

Case Synopsis & Summary

Desasingh v. Ajit Singh and Ors. is a Supreme Court decision arising from a Punjab and Haryana High Court ruling in a second appeal where the appellant was not represented due to circumstances beyond control. The core question was whether, in a second appeal, non-appearance should compel dismissal for default or whether the matter could still be decided on merits. The appellant’s counsel argued that an application under Order XLII, Rule 27 CPC had been filed and that, because the advocates who previously appeared had retired or passed away, there was no representation on 22 October 2002 when the matter was listed; as a result, the High Court proceeded to decide the matter on merits, which the appellant contended was improper. The respondents maintained that the High Court did inspect the records despite non-appearance and decided the matter on merits. The Supreme Court noted that ordinarily, in the absence of representation, the High Court would dismiss for default and refrain from going into merits. However, in the peculiar circumstances here, it set aside the High Court’s order and remitted the matter to the High Court for a fresh hearing on merits. It directed engagement of new counsel within a month and listing before an appropriate Bench after six weeks. The appeals were disposed of to that extent with no order as to costs, underscoring the importance of fair procedure when representation is lacking and providing a fresh opportunity to adjudicate on the merits.

Provisions of Law Cited

Code of Civil Procedure, 1908; Order XLII, Rule 27

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that an application under Order XLII, Rule 27 CPC was filed and, due to changes in counsel and unforeseen circumstances on 22 October 2002, there was no representation when the matter was listed. The High Court should have dismissed the appeal for default rather than deciding the matter on merits. The appellant sought remand to the High Court for fresh hearing on merits with new counsel to be engaged within a month.

Contentions of Respondents

The respondents argued that despite lack of representation, the High Court examined the records and decided the matter on merits. They contend that the High Court’s decision did not prejudice their case and that the appeal was appropriately disposed of on merits in the High Court.

Extracted Judgment Text

Exact text extracted from official judgment records.

~ ~ _(_ ## DESASINGH _v._ ## AJIT SINGH AND ORS. ## DECEMBER 8, 2006 ## [DR. ARIJIT PASA VAT AND S.H. KAPADIA, JJ.] _Practice and procedure-Non-appearance on behalf of appellant in second appeal for reasons beyond their control-Decision on merits by High Court against appellant-Correctness of-Held: High Court ought to have_ c _dismissed the matter for default-Thus, order of High Court set aside and matter remitted back._ The question which arose for consideration in this appeal was whether in second appeal when there was non appearance on behalf of appellant due to unforeseen circumstances, High Court was right in proceeding to decide the D matter on merits. Disposing of the appeal, the Court HELD: When the matter was taken up before the High Court, there was no representation by the appellant because of circumstances beyond their E control and the matter was decided against them. Normally when the appellant is not represented, the High Court would dismiss it for default and not go into the merits in detail. Thus, the order of the High Court is set aside and the matter is remitted back to the High Court for fresh hearing on merits. [476-E-G] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5663 of 2006~ F From the final Judgments and Orders dated 22.10.2002 and 7.5.2004 of the High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 8/1981 and C.M. No. 13908-C/2003 in R.S.A. No. 8/1981 respectively. Amrit Lal Jain, Dhiraj and P.N. Puri for the Appellant. G Ajay Jain, Jinendra Jain, G. Ravi Shanker and Kamlendra Mishra for the Respondents . The Judgment of the Court was delivered by 475 476 SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R. A ## Dr. ARIJIT PASA Y AT, J. Leave granted. Challenge in these appeals is to the correctness of judgment rendered by a learned Single Judge of the Punjab and Haryana High Court dismissing the second appeal filed. Though appeal was decided in the absence of learned counsel for the appellant yet the High Court proceeded to decide the B matter on merits. Learned counsel for the appellant submitted that an application in terms of Order XL! of the Rule 27 of the Code of Civil Procedure, 1908 (in short the 'CPC') was filed. Shri lshwari Parshad, Advocate was initially engaged by the appellant at the time of admission. He retired from·practice due to his old C age. Thereafter another learned counsel Sh. Susheel Kumar Goyal alongwith his son Sh. S.B. Goyal were engaged. Unfortunately, Sh. S.B. Goyal expired in 2001 and thereafter Sh. Sushi! Kumar Goyal also retired from practice. When the matter was listed on 22.10.2002 there was no appearance on behalf of the appellant because of the aforesaid unforeseen circumstances. That is how there was .no representation when the matter was listed. Unfortunately, D the High Court without referring to all the relevant aspects placed for consideration, decided the matter on merits. Learned counsel for the respondents submitted that though the appellant was not represented, the High Court looked into the records and decided the matter. E As the factual scenario which is almost undisputed goes t<? show, there was no representation when the matter was taken up before the High Court. Because of circumstances beyond foe control of the appellants, there was no appearance and the matter was decided against them. Normally when the appellant is not represented, the High Court would dismiss it for default and F not go into the merits in detail. That is precisely what has not been done in the present case. In the peculiar circumstances, we set aside the order of the High Court anc remit the matter to the High Court for fresh hearing on merits. Learned counsel for the appellant stated that another counsel shall be G engaged within a period of one month. The matter shall be listed before the appropriate Bench after a period of six weeks. > Appeals are disposed of to the aforesaid extent with no order as to costs. H NJ. Appeals disposed of.