DESA SINGHversusAJIT SINGH AND ORS.

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                                       DESASINGH                                        A
                                           v.
                                  AJIT SINGH AND ORS.

                                    DECEMBER 8, 2006

                     [DR. ARIJIT PASA VAT AND S.H. KAPADIA, JJ.]                        B

              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
        dismissed the matter for default-Thus, order of High Court set aside and
                                                                                        c
        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
        control and the matter was decided against them. Normally when the appellant    E
        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                                         H
    476                      SUPREME COURT REPORTS [2006] SUPP. 10 S.C.R.

A            Dr. ARIJIT PASAY 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.