BHIMSHANKER Vs. HARISHANKER

JUDGEMENT

(1.) THIS appeal has been filed against an order of the S. D. O. Jhadolea d/- 10. 7. 61. The facts relevant for our purpose are that this appeal came for first hearing before a Division Bench of this Board on 18. 5. 62. The court on that date directed the counsel for the appellant that fresh summons in respect of respondent Nos. 4, 6, 7, 13 and 14 should be filed as the original summonses issued had not been returned after service by them. The summonses issued in respect of respondent No. 8 Smt. Kesha widow of Mavaji was received back with the report that the respondent had died before service. The learned counsel for the appellant undertook on that date to bring on record the legal representatives of the deceased respondent and the case was adjourned with the clear direction to the learned counsel that he will file his application to bring the legal representative on the record within one month and that he will also send a copy of his application in this behalf to the respondents on whom service had not been effected. Since then the learned counsel for the appellant has failed to comply with the direction of the court and wants us to hear the arguments in the case today inspite of his failure to comply with these directions of the court. His argument is that the order of the court below is a nullity and it is not necessary for him to have the opposite parties summoned before this court. In support of this contention the learned counsel relies upon two previous decisions of the Board reported in R. R. D. 1961 on pages 24 and 188. We have referred to both these decisions. In the first case Shri Ali Mohd. Vs. State of Rajasthan reported in RRD 1961 page 24 we find that both the parties were present at the time of the hearing. We might refer to para No. 2 of this decision which begins by saying "we have heard the learned counsel for the parties and examined the record as well. " In the second case reported in R. R. D. 1961 page 188 there is no mention of the fact that the case was heard and decided in the absence of any party to the case. We therefore cannot construe either of these two decisions as authority for the proposition that when the question for determination before the court is whether or not the impugned decision is nullity it is not necessary to have both the parties before the court and that the court can decide the case upon its own examination of the record of the case, We are of the opinion that the order which affects the rights of a party adversely cannot be passed by a court without giving that party a reasonable opportunity to be heard in support of its own case. In this case it is open to the respondents to appear before us and show that the impugned decree or order is not a nullity but a valid order. Therefore we are unable to accept the contention of the learned counsel. The learned counsel's failure to comply with the direction of the court for which time was also granted to him and which was with the view to enabling the court to make further progress in the case to our mind clearly brings him Within the ambit and mischief of order 17, rule 2 of the C. P. C. We accordingly construe the failure of the learned counsel to comply with the direction of the court as a default and dismiss the appeal accordingly. .