PURUSHOTTAM AND ANR. Vs. TARSEM SINGH

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree dated 22 -1 -2007 passed by the District Judge Udham Singh Nagar in Civil Appeal No. 62 of 2004 Purushottam and Anr. v/s. Tarsem Singh, arising out of the judgment and decree dated 25 -9 -2004 passed by the Civil Judge (Junior Division) Rudrapur, Udham Singh Nagar in Civil Suit No. 63 of 1999, Tarsem Singh v/s. Purushottam and another. By the judgment and decree dated 25 -9 -2004, the trial court had decreed the suit of the Plaintiff -Respondent, while the first Appellant court dismissed the appeal by the judgment and decree dated 22 -01 -2007.

(2.) The Second Appeal is admitted on the following substantial question of law: Whether the First Appeal can be decided on merit in the absence of the Appellants ?

(3.) Relevant facts, in brief, are that the Respondent -Plaintiff filed a suit for permanent injunction against the Defendant -Appellants, which was registered as Civil Suit No. 63 of 1999, Tarsem Singh v/s. Purushottam and another before the Civil Judge (Junior Division) Rudrapur (Udham Singh Nagar). The suit was heard and decided by the trial court on merits and by the judgment and decree dated 25 -9 -2004, the suit was decreed against the Defendants and the Defendants were restrained from interfering with the Khasra No. 464/2, area 0.007 hectare and 464/2 area 0.005 hectare belonging to the Plaintiff. Aggrieved by the judgment and decree of the trial court, the Appellants filed first appeal before the District Judge Udham Singh Nagar. Notices were issued in the appeal. The Respondent was served and he was represented before the appellate court, but the Appellants were not present on the date of hearing of appeal. The District Judge instead of dismissing the appeal in default of the Appellants under Order 41, Rule 17(1) Explanation of the Code of Civil Procedure , proceeded to enter into the merits of the case and dismissed the appeal on merit by the judgment and decree dated 22 -01 -2007.