SOMPAL Vs. GAYATRI DEVI

JUDGEMENT

(1.) -Heard Sri J. J. Munir, learned counsel for the appellants and Sri S. K. Pundir, advocate for the caveator-respondent.

(2.) THIS is defendant's second appeal arising out of judgment and decree dated 30.4.2007 passed by 11th Additional District Judge, Ghaziabad dismissing Civil Appeal No. 64 of 2005 and affirming the judgment and decree dated 17.3.2005 in Original Suit No. 306 of 2002 for specific performance. The suit was instituted for non-performance of the registered agreement to sell dated 6.1.1998. The appellant No. 2 was impleaded as defendant No. 2 subsequently by order of the Court dated 24.1.2003. Written statement was filed beyond the period of 90 days as prescribed by Civil Procedure Code. It is submitted that service on the defendant-appellants was effected by publication and not by process server or registered post. In the circumstances, the defendant-appellants were not allowed to put forth his defence by filing a written statement. The suit was decreed. Civil Appeal No. 64 of 2005 was preferred in the Court of District Judge, Ghaziabad. The Additional District Judge dismissed the appeal on merits.

(3.) LEARNED counsel has placed reliance on a decision of the Apex Court on the question of law relating to Order XLI, Rules 16 and 17, C.P.C., in Abdur Rahman and others v. Athifa Begum and others, (1996) 6 SCC 62, where it was held that High Court transgressed its limits in taking into account the relevant aspects of the matter on merit and holding that there was no good ground for interference. The Court sitting in appeal has no option but to dismiss the appeal in absence of the appellant in default, which has admittedly not been done in the instant case.