Munninarage Gowda and Ors. Vs. Lakshmanappa and Anr.
EmailAppeal: Civil Appeal No. 415 of 2001
(Arising out of SLP (C) No. 3624 of 2000)
(Arising out of SLP (C) No. 3624 of 2000)
Petitioner: Munninarage Gowda and Ors.
Respondent: Lakshmanappa and Anr.
Apeal: Civil Appeal No. 415 of 2001
(Arising out of SLP (C) No. 3624 of 2000)
(Arising out of SLP (C) No. 3624 of 2000)
Judges: K.T. THOMAS & R.P. SETHI, JJ.
Date of Judgment: Jan 10, 2001
Head Note:
PRACTICE AND PROCEDURE
Civil Procedure Code, 1908
Section 100 – Second appeal – Appeal disposed of on merits – However, Counsel not heard – Review dismissed – Opposite party also having filed second appeal against portion of judgment against them – Said appeal admitted for hearing. Held that the appeal of the appellants be also heard again by affording one opportunity. (Paras 4, 5)
JUDGEMENT:
ORDER
1. Leave granted.
2. Appellants herein were plaintiffs in a suit for injunction against the respondents. Before the suit was instituted, the respondents filed another suit as OS No. 388 of 1995 in respect of the same suit property. Both suits were tried together and disposed of together by the trial court. When the suit of the appellants was dismissed, the earlier suit was decreed in favour of the respondents. Appellants filed a first appeal against the decree passed in the earlier suit, but not in the second suit filed by respondents. In the first appeal the Appellate Court modified the decree passed by the trial court by deleting that portion by which the title of the respondents was declared by the trial court. Appellants preferred a second appeal before the High Court which was dismissed as per the impugned judgment.
3. Our attention has now been drawn to a subsequent development i.e. respondents filed a second appeal before the High Court against that portion of the judgment of the First Appellate Court by which the title was not found in favour of the respondents. We are told that the second appeal so filed by the respondents has since been admitted by the High Court and is now pending.
4. We have noticed that the second appeal filed by the appellants before the High Court was dismissed on merits, but the Counsel for the appellants was not heard in the matter as he was absent when the appeal was taken up for hearing. Review petition was filed by the appellants on the ground that the Counsel was laid up when the second appeal was taken up by the High Court for hearing. But that review petition was also dismissed.
5. We think in the interest of justice, that the second appeal filed by the appellants in the High Court should be heard and disposed of by the High Court again after affording one more opportunity to the Counsel for the appellants to be heard in the matter. We adopt the said course in view of the fact that the other second appeal filed by the respondents has since been admitted and is pending now. Both of them can be heard together and disposed of by a common judgment, unless the respondents are not pursuing the second appeal filed by them.
6. To facilitate the aforesaid course we set aside the impugned judgment and remit the second appeal to the High Court for disposal afresh on the merits.
7. This appeal is disposed of accordingly.
1. Leave granted.
2. Appellants herein were plaintiffs in a suit for injunction against the respondents. Before the suit was instituted, the respondents filed another suit as OS No. 388 of 1995 in respect of the same suit property. Both suits were tried together and disposed of together by the trial court. When the suit of the appellants was dismissed, the earlier suit was decreed in favour of the respondents. Appellants filed a first appeal against the decree passed in the earlier suit, but not in the second suit filed by respondents. In the first appeal the Appellate Court modified the decree passed by the trial court by deleting that portion by which the title of the respondents was declared by the trial court. Appellants preferred a second appeal before the High Court which was dismissed as per the impugned judgment.
3. Our attention has now been drawn to a subsequent development i.e. respondents filed a second appeal before the High Court against that portion of the judgment of the First Appellate Court by which the title was not found in favour of the respondents. We are told that the second appeal so filed by the respondents has since been admitted by the High Court and is now pending.
4. We have noticed that the second appeal filed by the appellants before the High Court was dismissed on merits, but the Counsel for the appellants was not heard in the matter as he was absent when the appeal was taken up for hearing. Review petition was filed by the appellants on the ground that the Counsel was laid up when the second appeal was taken up by the High Court for hearing. But that review petition was also dismissed.
5. We think in the interest of justice, that the second appeal filed by the appellants in the High Court should be heard and disposed of by the High Court again after affording one more opportunity to the Counsel for the appellants to be heard in the matter. We adopt the said course in view of the fact that the other second appeal filed by the respondents has since been admitted and is pending now. Both of them can be heard together and disposed of by a common judgment, unless the respondents are not pursuing the second appeal filed by them.
6. To facilitate the aforesaid course we set aside the impugned judgment and remit the second appeal to the High Court for disposal afresh on the merits.
7. This appeal is disposed of accordingly.
