MANGAT Vs. SURJA

JUDGEMENT

(1.) Surja (now deceased) filed a suit against Mangat and his brother Hukum, petitioners for a declaration that the gift-deed dated June 17, 1969, alleged to have been executed by him in respect of agricultural land measuring 62 Kanals 16 Marlas in village Sandhir, Tahsil Karnal, in their favour is null and void and for a permanent injunction restraining them from interfering with his possession of the said land. The trial court decreed the suit in favour of Surja on March 13, 1974. Mangat and Hukum preferred an appeal which remained pending in the Court of District Judge, Karnal, who vide order dated Feb. 26, 1975, adjourned it sine die. On Aug. 1, 1975, the District Judge entrusted this appeal to the Additional District Judge, Karnal, directing that the appeal will be taken up for arguments in the transferee Court on Aug. 7, 1975. The Order dated Aug. 1, 1975, purported to have been passed in the presence of Shri B. P. Jain, counsel for the petitioners and Shri Chinta Mani, counsel for Surja. On Aug. 7, 1975, nobody appeared before the Additional District Judge, Karnal, on behalf of Surja. The Additional District Judge heard ex parte arguments of the petitioners and vide Order dated Aug. 18, 1975, accepted the appeal and dismissed the suit of Surja.

(2.) On Sep. 15, 1975, Ishwar Singh respondent claiming to be the adopted son of Surja filed an application for re-hearing of the appeal stating that Surja died on Aug. 29, 1975, and no intimation was received by him or his counsel that the appeal had been posted for arguments for a particular date. Ishwar Singh is a minor. The application, was filed on his behalf by his father Parsa. It was stated in the application that Parsa visited Karnal on Aug. 28, 1975, to make enquiries about the appeal from Sri Chinta Mani, Advocate, who informed him (Parsa) that no information had been received regarding the fixation of the appeal. On further enquiry, Parsa learnt that the appeal had been heard and decided ex parte. The absence of Surja in the appellate court on Aug. 18, 1975, was not intentional. It was accordingly prayed that the ex parte decree passed by the appellate court be set aside and the appeal be reheard.

(3.) Mangat and Hukum, petitioners contested the application of Iswar Singh. They denied that Ishwar Singh had locus standi to file the application because he was neither the adopted son of Surja nor was his legal representative. According to them, the counsel for the parties had been informed about the date of hearing of the appeal.