Case Note & Summary
The case involves a second appeal arising from a property dispute between brothers. The appellants (original defendants) are Laxman s/o Budhaji Mudanker and Mahadeo s/o Laxman Mudanker, and the respondent (original plaintiff) is Deorao s/o Budhaji Mudanker. The respondent filed a suit for declaration of exclusive ownership, permanent injunction, and damages regarding three suit lands and a house property, claiming a partition that took place 35 years ago. The trial court (Civil Judge, Jr. Dn., Ramtek) dismissed the suit on 17.4.2008 in Regular Civil Suit No.56 of 1999. The respondent appealed to the District Court, Nagpur (Regular Civil Appeal No.101 of 2009). The first Appellate Court (District Judge-6, Nagpur) partly allowed the appeal on 20.2.2012, reversing the dismissal and decreeing the suit in favor of the respondent, declaring him exclusive owner of the suit properties. The grievance of the appellants is that they were not heard in the first Appellate Court; the judgment does not mention whether the respondents (original defendants) were served or if they had engaged counsel who remained absent. The High Court considered the nature of the dispute and noted that the first Appellate Court reversed the dismissal of the suit without hearing the appellants. The High Court held that the judgment was vitiated for violation of principles of natural justice. Consequently, the High Court allowed the second appeal, set aside the judgment of the first Appellate Court, and remanded the matter to the first Appellate Court for fresh hearing after giving opportunity to both sides. The court directed that the first Appellate Court shall decide the appeal afresh in accordance with law, after hearing both parties.
Headnote
A) Civil Procedure - Natural Justice - Right to be Heard - Ex Parte Decree - The first Appellate Court reversed the dismissal of the suit and partly decreed it in the absence of the respondents, without recording whether they were served or had engaged counsel who remained absent. Held that the judgment was vitiated for violation of principles of natural justice as the appellants (original defendants) were not heard. (Paras 1-3) B) Civil Procedure - Remand - Appellate Court's Duty - The High Court, finding that the first Appellate Court's judgment was passed without hearing the respondents, set aside the judgment and remanded the matter to the first Appellate Court for fresh hearing after giving opportunity to both sides. (Para 3)
Issue of Consideration
Whether the first Appellate Court could reverse the dismissal of the suit and partly decree it without hearing the defendants/respondents, and whether the judgment was vitiated for non-compliance with principles of natural justice.
Final Decision
The second appeal is allowed. The judgment and order dated 20.2.2012 passed by the learned District Judge-6, Nagpur in Regular Civil Appeal No.101 of 2009 is set aside. The matter is remanded to the first Appellate Court for fresh hearing after giving opportunity to both sides. The first Appellate Court shall decide the appeal afresh in accordance with law, after hearing both parties. No order as to costs.
Law Points
- Natural justice
- right to be heard
- ex parte decree
- appellate court duty
- service of notice
- remand
