Leave granted.
Heard learned counsel appearing for the parties.
This appeal can be disposed of on a very
short question. The second appeal was filed by the present
respondents before the High Court challenging the judgment
and decree of the Appellate Court, which had granted a
decree for specific performance of contract for sale. By
the impugned order, the High Court had reversed the judgment
of the Appellate Court and allowed the second appeal. We
have been taken through the judgment of the High Court by
the learned counsel appearing for the appellants. It
appears from the said judgment that the High Court had
proceeded to dispose of the second appeal in the absence of
any learned counsel appearing for the respondents. The
judgment of the High Court shows:
“Heard the learned counsel for the
appellant. None argued for the respondents.
Shri K.N. Mishra, learned counsel for the
respondent submitted that he has no
instructions to argue the appeal.”
We are informed by the learned counsel
appearing for both the parties that Shri K.N. Mishra could
not appear for the present respondents because he had not
filed vakalatnama on behalf of the heirs and legal
representatives of the deceased respondent. In fact, he
had filed vakalatnama on behalf of the respondent, who
subsequently died. That being the position, it is now
admitted position that the second appeal was allowed without
giving any opportunity of hearing to the respondents
therein. We are, therefore, of the view that an opportunity
should be given to these respondents to contest the second
appeal in the High Court. The impugned order is, therefore,
set aside, the appeal is restored to its original file and
the matter is remanded back to the High Court for fresh
disposal of the Second Appeal No.1242 of 1980, after giving
opportunity of hearing to the parties and passing a reasoned
judgment in accordance with law.
Both sides agreed that no further notice
need to be sent to the respondents regarding fixation of a
date of hearing of the second appeal by the High Court.
That being the position, we request the High Court to decide
the appeal after remand within a period of three months from
the date of supply of a copy of this order to it.
The impugned order is accordingly set aside.
The appeal is allowed to the extent indicated above. There
will be no order as to costs.