OM PRAKASH Vs. AMARJIT SINGH & ANR

JUDGEMENT

(1.) Special leave granted. Arguments heard.

(2.) We are satisfied that the High Court was in error in not interfering with the judgment and decree passed by the learned Subordinate Judge, as affirmed by the learned Additional District Judge, decreeing the plaintiff's suit for specific performance. Earlier, the learned District Judge by his judgment and order dated Feb. 14, 1986 had set aside the judgment and decree passed by the learned Subordinate Judge with the direction to re-admit the suit under its original number and proceed to determine the suit under its original number and proceed to determine the suit afresh. The effect of the remand order was to give the appellant a right to be relegated to the stage at which the suit was when the Court decided to proceed ex parte against him and it was not necessary to get the ex parte order set aside. The High Court failed to appreciate that the learned Subordinate Judge acted illegally and with material irregularity in decreeing the plaintiff's suit for specific performance without affording to the appellant the opportunity of appearing and participating at the proceeding i.e. to cross examine the plaintiff and his witnesses and if necessary, leading evidence in rebuttal. The law is clear on the subject. This Court interpreting the provision contained in Order IX, rule 7 of the Code of Civil Procedure 1908 in Sangram Singh Vs. Election Tribunal Kotah Bhurey Lal Baya (1955) 2 SCR 1 speaking through Vivian Bose, J. laid down that the code is designed to facilitate justice and further its ends, and should not be treated as an enactment providing for punishments and penalties and said:

(3.) Accordingly, the appeal succeeds and is allowed. The judgment and decree passed by the subordinate Judge as well as those of the Additional District Judge and the order of the High Court declining to interfere are set aside. The learned Subordinate Judge shall now proceed to fix a date for the hearing of the suit and give the parties notice of the same, and shall decide the suit according to law. No costs. Appeal Allowed.