Mrs. Santosh Gupta and Another vs State Bank of Patiala and Others

Mahesh Grover, J.—This is defendants'' appeal against the judgments of the learned trial Court dated 8.2.1985 and that of the first Appellate Court dated 26.2.2008.

Briefly, the facts of the case are that a suit was preferred by the State Bank of Patiala, plaintiff/respondent No. 1 against M/s Bee Gee Corporation (P) Ltd. and six others for recovery of Rs. 21,43,221.98. One of the defendants (defendant No. 4), was Nasib Chand Gupta, who expired on 28.1.1975 before the completion of pleadings and before filing of the written statement and this fact was duly brought to the notice of the learned trial Court on 7.1.1976 which is also reflected from the zimni order of the same date. However, the legal representatives of the deceased were not brought on record by the plaintiff/respondent. Ultimately, preliminary decree dated 8.2.1985 was passed against which the existing defendants filed an appeal bearing RFA No. 1038 of 1985. Said Nasib Chand Gupta was arrayed as respondent No. 2 in this appeal even though the respondent Bank was fully aware of his death. Even the process server in his report dated 10.9.1987 reported to the same effect regarding his death but for some reason the legal representatives of the deceased were not brought on record. Ultimately in C.M. No. 1648-CI of 1996 vide orders of this Court dated 16.7.1996 the legal representatives of deceased Nasib Chand Gupta were brought on record. But during the pendency of the regular second appeal the Addl. Senior Sub Judge, Patiala on 14.10.1993 passed the final decree against all the defendants including the deceased (defendant No. 4). Against the said final decree another appeal being R.F.A.No.890 of 1994 was preferred and surprisingly even in this appeal the deceased was arrayed as respondent. Subsequently, on enhancement of the pecuniary jurisdiction of the District Judges in the State of Punjab both the appeals were transferred back to the District Judge, Patiala in the year 2007 for disposal. In these appeals an application under Order 1 Rule 10 C.P.C was filed to get the legal representatives of deceased Nasib Chand Gupta impleaded as necessary and proper parties as they were entitled to be heard. The said application was allowed as there was no objection from the respondents. But the appeals were also decided on the same day and it is the grievance of the appellants that the newly added legal representatives were never heard.

It is the contention of the learned Counsel for the appellants that he was not given any opportunity of being heard, which is reflected from the impugned judgment wherein his contention qua the application under Order 1 Rule 10 CPC has been noticed, but no contention on merit has been recorded.

A perusal of the impugned judgment shows that the entire thrust of the argument from paras 11 to 16 shows that the Court was dealing with the application of the appellants for being impleaded as legal heirs and after allowing the same it simply went on to dispose of the matter on merits without noticing the contentions of the learned Counsel for the appellants. When the impugned order is tested on the contention which has been raised before this Court that the appellants were not heard, then the same appears to be correct, as no contention of the learned Counsel for the appellants has been noticed and the impugned order has been passed straightway.

In this view of the matter, I am of the considered opinion that grave violation of principles of natural justice has been committed as the impugned judgment and decree has been passed without hearing the learned Counsel for the appellants. It is, therefore, deemed appropriate that the impugned judgment and decree be set aside as the same has been passed without hearing the learned Counsel for the appellants on merits and the matter is remitted back to the first Appellate Court to dispose it of afresh after hearing the respective parties.

The parties are directed to appear before the first Appellate Court on 10.7.2009.

Having regard to the fact that the matter is extremely old and it pertains to the suit for recovery initiated by the Bank, I am of the opinion that the ends of justice would squarely be met if the appeal is decided as early as possible, preferably within six months from the date the Appellate Court commences upon the proceedings. Disposed of.