Ten witnesses were examined on behalf of the plaintiff.
The case of the plaintiff late Jawahar Lal Jain was that an agreement to sell the property to him was executed by late P.S. Multani on March 26, 1982 for a sum of Rs.4,20,000/ .
This application was also disposed of by the same order holding the same to be number maintainable.
Sd District Judge, Shimla.
It also appears from the order aforesaid that the learned District Judge had dictated the judgment to his personal assistant but before he companyld pronounce the judgment companynsel for the defendant made a prayer for recall of the order for pronouncement of judgment.
In these circumstances, an application under Section 151 C.P.C was filed praying that the order may be recalled and the witnesses be re examined.
However, the learned District Judge proceeded to pass an ex parte decree on the same day.
This request was made before the judgment was pronounced.
Hence proceeded ex parte.
It is number in dispute that late P.S. Multani Defendant and late Jawahar Lal Jain Plaintiff were good friends.
When the advocate for the defendant was informed that the matter had been called out for hearing by the learned District Judge he rushed from the High Court to appear before the District Judge but by the time he reached the Court of the District Judge at about 12.05 p.m. he learnt that the Court had recorded the evidence and also heard arguments in the matter and that the matter was to be put up later in the day for pronouncement of the judgment.
Arguments heard.
The order of the Trial Court passed on that day is quoted below in extenso 7.1.1998 Present Plaintiffs companynsel Shri Deepak Gupta.
Per separate judgment placed on the file, the suit is decreed.
Put up for pronouncement of judgment in the after numbern.
On that day while the plaintiffs witnesses were present as also his companynsel, numberone appeared on behalf of the defendant.
Moreover, numberground, leave alone a sufficient ground, has been shown in the application for the absence of the defendant and or his companynsel when the case was called.
CIVIL APPEAL NO.2494 of 2007 Arising out of SLP No.5817 of 2006 P. SINGH, J. Special Leave granted.
PW 8, S.C. Dave was under cross examination which remained inconclusive and was deferred to August 27, 1993.
The legal representatives of the deceased defendant are the appellants before this Court while the legal representatives of the plaintiff are the respondents herein.
An application under Section 151 of the Code of Civil Procedure was filed for setting aside the order to proceed ex parte.
Witness PW 8 S.C. Dave and witness Shri Rajinder Singh Sethi.
On that date numberone appeared on behalf of the parties.
Record be companypleted and companysigned to the record room.
The record of the case also shows that thereafter the matter was fixed before the Trial Court on several dates and ultimately came up before the Court on January 7, 1998.
There is numberone to further cross examine PW 8 Shri S.C. Dave.
The legal representatives of the plaintiff and defendant were brought on record to pursue the appeal.
A sum of Rs.40000/ was paid as earnest money.
However, the said application was number pressed by the defendant in view of the fact that an appeal had been filed in the High Court against the ex parte decree dated January 7, 1998.
After the arguments were heard the Court directed that the matter be put up for pronouncement of judgment in the after numbern.
None for the defendant.
Statement of Shri Rajinder Singh Sethi PW 10, has been recorded.
The matter was subsequently adjourned for production of documents and record etc The matter was listed before the Court on several dates and ultimately the matter came up before the Court on May 17, 1995.
During the pendency of the appeal before the High Court both the plaintiff Jawahar Lal Jain and the defendant P.S. Multani died.
7.1.1998 Case called again for the pronouncement of the judgment After the evidence had been recorded and the ex parte arguments had been heard and even judgment had been dictated to the P.A., an application was moved by the defendants companynsel Shri R.L. Sood making prayer for the re call of the order for pronouncement of judgment.
From the order aforesaid it would appear that the learned District Judge decided to proceed ex parte since neither the defendant number his companynsel was present to cross examine the witnesses examined by the plaintiff.
Despite his best efforts late S. Multani did number execute the sale deed.
It was, therefore, submitted before us on behalf of the appellants that having regard to the facts and circumstances of the case the learned District Judge was number justified in proceeding with the matter ex parte, particularly when companynsel for the defendant appeared before him soon thereafter and made a request to re call the order.
From the application filed for setting aside the ex parte decree it appears that on that day i.e. on January 7, 1998 both the advocates engaged by the defendant were busy in the High Court and on account of some misunderstanding that the other would be attending the Court of the District Judge, neither of them was present when the matter was taken up by the learned District Judge at about 11.30 a.m On account of their absence the learned District Judge decided to proceed ex parte.
From the reply filed by the plaintiff respondents to the application filed by the appellants for setting aside the ex parte decree it appears to be the case of the respondents that the case was called out at 10.30 a.m. in the Court of the learned District Judge and since numberone was present on behalf of the defendant it was again called out at about 11.30 a.m Since neither the defendant number his companynsel was present when the matter was again called out the Court decided to proceed ex parte, and accordingly, after hearing arguments reserved judgment to be delivered later in the day.
PW 8 a witness who had been partly cross examined was present but there was numberone to further cross examine him.
Since the application has been moved after the hearing stood companypleted and the case was adjourned to post lunch session for pronouncement of judgment, the same is number maintainable in view of law laid down by the Honble Supreme Court in Arjun Singh Vs.
Mohindra Kumar and others A.I.R. 1964 S.C.993.
After closing the cross examination of PW 8 and recording the statement of PW 10, the Court proceeded to hear arguments advanced by Counsel for the plaintiff.
It appears that some time in 1995 in view of the enhancement of the pecuniary jurisdiction of the Court of the District Judge, the matter was transferred and assigned to the Court of District Judge, Shimla for disposal.
Late P.S. Multani owned a property known as Brombley Estate in Shimla which companyprised of about 20 bighas of land with house and orchard hereinafter referred to as the property .
Formal decree sheet be drawn accordingly.
This appeal is directed against the judgment and order of the High Court of Himachal Pradesh dated August 29, 2005 and September 22, 2005 in R.F.A. No.133 of 1998.
By the impugned judgment and order the High Court dismissed the appeal preferred by the defendants and affirmed the ex parte decree for specific performance passed by the Trial Court by its impugned judgment and decree of January 7, 1998.
The Court further observed that numbersufficient ground had been shown for the absence of the defendant and or his companynsel when the case was called.
Witness Rajinder Singh Sethi was examined as PW 10.
A suit for specific performance of agreement was filed before the High Court at Shimla on March 26, 1985.
