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Kundan Singh and ors. Vs. Gurrnam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal Order No. 66 of 1984
Judge
Reported inAIR1986P& H51
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 8
AppellantKundan Singh and ors.
RespondentGurrnam Singh and ors.
Cases ReferredRadha Kishan. v. Raja Ram
Excerpt:
.....be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a..........consequently, the appeal fails and is dismissed with no order as to costs. the parties have been directed to appear in the trial court on 14th june. 1985. 4. appeal dismissed.
Judgment:

1. This appeal is directed against the order of the Additional District Judge dated 29th September, 1984 whereby the decree of the trial Court dismissing the suit was set aside and the case was remanded to the trial Court for fresh decision after complying with the provisions of Order 1 Rule 8, code of Civil Procedure.

2. Admittedly, the plaintiffs Gurnam Singh and other filed the suit for declaration in a representative capacity after filing an application under O. 1. R. 8, code of Civil Procedure. It appears that the trial court did not issue notices for the institution of the suit to all the residents of the village either by personal service or public advertisement as required under O. 1. R. 8, code of Civil Procedure and the suit was allowed to proceed as such. Ultimately, the suit was dismissed by the trial court. In appeal, the learned Additional District judge found that since there was Non-compliance of O. 1. R, 8, the decree was liable to be set aside and thus remanded the case to the trial court for a fresh decision after compliance of O. 1. R. 8, Dissatisfied with the same, the defendants have filed this appeal.

3. After hearing the learned counsel for the parties I do not find any merit in this appeal. Admittedly, the trial court failed to comply with the provisions of Order, 1, Rule 8, C.P.C. The said provision of law is mandatory in nature. In the absence of any notice, the provisions of sub-rule (2) would become redundant and grave injustice may result therefrom in the form of a decree against persons who were never told that a case was pending against them. It was held in Radha Kishan. v. Raja Ram (1976) 78 Pun LR 271 that the issue of a notice is not a mere empty formality but a sine qua non for the applicability of the rule. Under the circumstances, the lower appellate court right set aside the decree of the trial court and remanded the case for fresh decision after complying with the provisions of Order 1, Rule 8. Consequently, the appeal fails and is dismissed with no order as to costs. The parties have been directed to appear in the trial court on 14th June. 1985.

4. Appeal dismissed.


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