BABU RAM Vs. HIRA SINGH

JUDGEMENT

(1.) This order shall dispose of two applications.

(2.) In the application under Order 41 Rule 21 read with Order 42 Rule 1 read with Order 9 Rule 13 and Section 151 CPC; bearing CMP No. 252 of 2005, it has been alleged that Regular Second Appeal No. 224 of 1991 was filed by Baru Ram defendant and that the applicant -plaintiffs had not received notice of the said appeal and they had no knowledge of the pendency of the said appeal till July, 2004 and it was only in July, 2004 that Shri Khattar Singh, Ex -Pradhan of Gram Panchayat, told them that the disputed land had been sold by Jagat Singh defendant No. 1 to one Lai Singh and he also told them that Jagat Singh told him (Khattar Singh) that he had won some case against them in the High Court. It was alleged that thereupon the applicant firstly obtained the copy of the Judgment and Decree dated 1.3.1991 from the Court of District Judge on 4.8.2004 and thereafter the applicant rushed to Shimla and got inquiry made through Counsel in the Registry of this Court and the Counsel engaged by them inspected the file of the Regular Second Appeal on 7.8.2004 and from inspection of the file it transpired that the applicants had been proceeded ex -parte, firstly at the time of the admission of the appeal on 19.9.1991, and then at the time of final hearing on 16.4.1993 and that it was also ordered that actual date intimation letters shall be sent to the applicants at the time of final hearing. It was alleged that the appeal had been finally heard ex parte on 21.10,1997 and was decided on 24.10.1997, vide which the Judgments and Decrees of the Courts below were set aside. It was alleged that neither notice of such appeal was sent to the applicants nor any such notice or intimation letter was served upon the applicants. It was alleged that the Counsel advised the applicants to bring further record etc. and the applicants were also required to make necessary arrangement for arranging necessary expenses for filing application and after obtaining record and making necessary arrangement, the applicants came to Shimla in the 2nd week of January, 2005 and it transpired that the High Court was closed on account of Winter Vacations. It was alleged that no notice of appeal was ever served upon the applicants either in the year 1991 or in the year 1997 and no notice of actual date hearing was served upon the applicants. It was also alleged that notices were shown to have been personally served on Hira Singh while Basant Singh was claimed to have been served through his real brother (Hira Singh) even though no such notice was received by Hira Singh for himself or on behalf of Basant Singh. It was alleged that the applicants were entitled to be heard on merits in the appeal. It was accordingly prayed that the application be allowed, the Judgment and Decree dated 24.10.1997 passed by this Court be set aside and the appeal be re -heard on merits after giving opportunity to the applicants.

(3.) As referred to above, even though from a reading of the application it appears that the application has been filed on behalf of both the plaintiff -respondents No. 1 and 2 being the applicants, but the title of the application shows only Hira Singh as the applicant and not plaintiff -respondent No. 2 Basant Ram, who has been shown as "non -applicant". In fact, the application is signed only by Hira Singh as the applicant and not by Basant Singh.