HARIJAN VANABHAI DEVABHAI Vs. KHODA GRAM PANCHAYAT

JUDGEMENT

(1.) This Letters Patent Appeal is directed against the decision of the learned single Judge in Civil Appeal No. 1386 of 1983. That Civil Appeal was directed against the judgment and decree of the learned Civil Judge (Senior Division), Palanpur, in Special Civil Suit No. 55 of 1979. The defendants in the suit have preferred the Civil Appeal. The plaintiff in the suit is the respondent in the Civil Appeal. The same is the position in this Letters Patent Appeal. The learned single Judge summarily dismissed the Civil Appeal in the following terms :

(2.) Thus, we see that the learned single Judge has chosen not to assess the merits of the case in the First Appeal by reasons of his own and has chosen to dismiss it for the reasons mentioned in the judgment of the First Court. We also gather that the dismissal of the Civil Appeal happened without the issuance of the notice to the respondent therein, the plaintiff in the said Special Civil Suit. Though there is a power under Order 41, Rule 11(1) C. P. C. to summarily dismiss the Civil Appeal without the issuance of notice to the respondent, yet, the Court must be chary in exercising the power and if it chooses to do so, must express its own reason as the appellate forum for summarily rejecting the Civil Appeal. The reason is obvious. An order dismissing an appeal under Order 41, Rule 11(1) C. P. C. is open to appeal as a decree under the C.P.C. and as a judgment under the Letters Patent, as has happened in the present case. The further appellate forum should be enabled to understand the independent reasons which weighed with the lower appellate forum in summarily dismissing the appeal. That has not happened in the instant case. When we go through the judgment of the First Court, we find that the controversy is thick over the title to the land and allied questions. It is true that the plaintiff in the Special Civil Suit, the respondent herein, has succeeded before the First Court. In our view there ought to have been a hearing and disposal of the Civil Appeal on merits after notice is served on the plaintiff in the Special Civil Suit, the respondent herein. On the facts of the case, that would be a proper disposal of the Civil Appeal and we are not persuaded to accept and maintain the decision of the learned single Judge as rendered by him in the Civil Appeal.

(3.) In the said circumstances we allow this Letters Patent Appeal; set aside the judgment of the learned single Judge in Civil Appeal No. 1386 of 1983 and direct the Civil Appeal to be listed before the learned single Judge who hears such Civil Appeals so that notice may be issued to the plaintiff in the Special Civil Suit, the respondent herein and the Civil Appeal may be heard and disposed of on merits afresh. We make no orders as to costs.