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2014 Supreme(P&H) 1030
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Rameshwar Singh Malik
RSA No. 239 of 1991 (O&M)
Abdul Zalil
v.
Ismail @ Israil & Ors.
{Decided on 24/01/2014}
For the Appellant in RSA No.239 of 1991 & Mr. C.B. G0oel, Advocate.
for respondent No.5 in CR No.2104 of 1993:
For the Petitioner in CR No.2104 of 1993 & Mr. S.D. Bansal, Advocate.
for respondent No.5 in RSA No.239 of 1991:
Headnote:Civil Procedure Code, 1908, O.9, R.13 & O.41, R.14(3)--Appeal against ex parte decree by plaintiff--Reversal of judgment of trial Court, decreeing suit of plaintiff in toto granting relief of specific performance, which was denied by trial Court and that too without even issuing notice to defendants–Validity--Held, appellate Court committed patent illegality thereby violating golden rule of audi alteram partem--Impugned judgment and decree cannot be sustained. (Paras 6, 7, 15)
Key Points: - The appellate court reversed a trial court decree granting specific performance without issuing notice to certain defendants, raising audi alteram partem issues. (!) (!) (!) - The High Court holds that failure to issue notice to those adversely affected (defendants Nos. 3 to 5) in the appeal is patent illegality and violates natural justice. (!) (!) (!) (!) (!) - The matter is remitted for fresh decision by the lower appellate court, directing expeditious disposal, and the civil revision is dismissed; the regular second appeal is allowed. (!) (!) (!) (!) (!) (!) - References to governing principles: mandatory notice under Order 9 Rule 13 CPC and the necessity of hearing adversely affected parties before orders that affect their rights. (!) (!)
Question 1?
Question 2?
Question 3?
Mr. Rameshwar Singh Malik, J.: - The present regular second appeal (Abdul Zalil v. Ismail @ Israil and others) as well as Civil Revision No. 2104 of 1993 (Abdul Ajij v. Ismail @ Israil and others) are proposed to be decided together as both matters pertain to the same suit property and were ordered to be heard together vide order dated 11.1.2005. However, for the facility of reference, facts are being culled out from RSA No.239 of 1991.
2. Vendee has come in appeal against the judgment of reversal dated 10.8.1990 passed by the learned Additional District Judge, Gurgaon, whereby modifying the decree of learned trial Court, suit of the plaintiffrespondent was decreed in toto for possession by way of specific performance. Civil Revision is directed against the order dated 9.6.1993 passed by the learned executing court dismissing the application of the decree holder, whereby the same decree was being sought to be executed which is under challenge in the appeal.
3. Brief facts of the case are that plaintiff Abdul Ajij entered into an agreement to sell dated 28.2.1985 Ex.P1 with Ismail @ Israil-defendant No.1 through his general power of attorney, Khurshid Ahmad-defendant No.2. Land measuring 48K-15M, being ½ share of 97K-11M was sought to be purchased by the plaintiff for an amount of Rs.70,000/-. However, defendant No.1 executed sale-deed dated 1.3.1985 regarding land measuring 35K-12M out of the above-said land measuring 48K-15M in favour of Abdul Zalil-defendant No.5. DefendantNo.1 also executed another saledeed dated 4.3.1985 in favour of Smt.Fajri and Yamin-respondents. Plaintiff filed the suit for possession by way of specific performance.
4. Having been put to notice, defendants appeared and filed their written statements controverting the allegations of the plaintiff. Dismissal of the suit was prayed for.
5. On completion of pleadings of the parties, following issues were framed by the learned trial Court:-
“1. Whether defendants Nos. 1 and 2 entered into an agreement of sale of the agricultural land dated 28.2.85 in favour of the plaintiff and if so on what terms and conditions? OPP
2. Whether plaintiff paid any earnest money and if so to what amount? OPP
3. Whether plaintiff has been and is still ready and willing to perform his part of the contract? OPP
4. Whether sale made by deft. Nos. 1 and 2 in favour of defts. Nos. 3 to 5 are illegal, null and void, as alleged? OPP
5. Whether plaintiff has no locus standi to file this suit? OPD (1&2)
6. Whether agreement of sale is result of fraud and misrepresentation, as alleged? OPD (1 & 2)
7. Whether suit is not maintainable in the present form? OPD (1&2)
8. Whether suit is bad for mis-joinder of cause of action and mis-joinder of parties? OPD (1 &2)
9. Whether suit is collusive” OPD (5)
10. Whether plaintiff is not entitled to the decree of specific performance, as alleged in preliminary objection of written statement of defendant No.5? OPD (5).
11. Whether plaintiff is barred by waiver, abandonment and latches? OPD (5).
12. Whether defendants Nos. 3 and 4 are bonafide purchasers for a valuable consideration and without knowledge? OPD (3 & 4)
13. Whether suit is not properly valued for the purpose of court fees and jurisdiction? OPP (3&4)
14. Relief.”
6. To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. However on behalf of the defendants, evidence was led only by defendants No.1 and 2 who closed their evidence on 6.2.1990. On the same day, learned counsel for defendants No.3 and 4 as well as defendant No.5 withdrew from the case, pleading no instructions. After hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial Court declined the relief of specific performance and the suit was partly decreed for alternative relief of recovery for the amount of sale consideration, vide judgment and decree dated 14.2.1990.
7. Since the defendants were not f
