SURINDER SINGH Vs. PIARA SINGH AND OTHERS

JUDGEMENT

(1.) This regular second appeal has been put up for re-hearing after an application (CM no.1852-C of 2015) filed by respondent no.1 in this appeal, was allowed vide an order dated 19.08.2015, by a co-ordinate Bench that had earlier allowed this appeal, setting aside the impugned judgment of the learned first appellate Court dated 13.03.1986, by which the judgment of the learned Sub Judge Ist Class, Phillaur, dated 21.03.1985, dismissing the suit of the respondents-plaintiffs (respondents no.1 and 2 herein) was reversed. The judgment and decree of this Court in the present second appeal, dated 16.11.2014, was thus recalled by the same Bench as had allowed the appeal, in view of the fact that the said judgment and decree had been passed in the absence of respondent no.1 or his counsel, and the reason for such absence was accepted by the Court. Consequently, the matter had then been heard in length by this Court, with it being argued by counsel for the appellants as well as by respondent no.1.

(2.) It needs to be stated here that during the pendency of the appeal, the appellant Surinder Singh had died, and he is shown to have been later on represented by his legal representatives i.e. his widowed mother, his own widow and his four daughters (including two minor daughters). The widowed mother of the original appellant, Surinder Singh, i.e. Maya, is also stated to have died during the pendency of the appeal, with the remaining legal representatives being the widow and daughters of Surinder Singh. As regards the respondents in the appeal, i.e. the two plaintiffs, Piara Singh and Swaran Singh, both sons of Hazara Singh, though Mr. Som Nath Saini, Advocate, had been shown to be representing both as per the interim orders dated 20.03.2014 and 03.09.2014. Thereafter, Mr. Saini was stated to have appeared only in COCP no.157 of 2004 but in the appeal, as per his statement recorded vide the order dated 30.09.2014. It was also recorded in that order that a perusal of the order dated 26.11.2002 showed that respondents no.1 and 2 (i.e. the plaintiffs in the suit), had actually been proceeded against ex parte, they having appeared despite service of notice upon them. Respondents no.3 and 4 in the appeal have been shown to be only proforma respondents, with respondent no.3, Ajit Singh, being defendant no.2 in the suit and the father of appellant Surinder Singh and respondent no.4, Bachan Kaur wife of Kishan Singh (defendant no.3 in the suit), seen to be the sister of the plaintiffs and Ajit Singh, as per the plaint itself. In the same order dated 30.09.2014, it was also recorded that Shri H. C. Ahuja had thereafter filed his power of attorney on behalf of respondent no.1 Piara Singh, but he too has appeared on subsequent dates.

(3.) Eventually in the order by which the application filed under Order 41, Rule 21 CPC was allowed, i.e. the order dated 19.08.2015, it is recorded that counsel for the applicant-respondent no.1 had stated that initially he had engaged Shri Satya Parkash Jain as his counsel, who expired in the year 1990, after which he had engaged Shri H.C. Ahuja, Advocate, but he too had passed away about five years earlier. In these circumstances, it was stated that the non-representation of respondent no.1 either himself or through his counsel, was intentional at the time when this appeal had been first decided on 16.11.2014. Consequently, the application had been allowed vide the order dated 19.08.2015, as already stated, with respondent no.1 duly represented by Mr. S.N. Saini, Advocate. Respondent no.2, though a coplaintiff with respondent no.1, is never seen to have been represented after having been proceeded against ex parte vide the order dated 26.11.2002, with respondents no.3 and 4.