Full Judgment Text
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PETITIONER:
BHOLA NATH MISRA
Vs.
RESPONDENT:
RAJENDRA PANDEY & ANR.
DATE OF JUDGMENT: 20/02/1997
BENCH:
K. RAMASWAMY, S. SAGHIR AHMAD
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
This appeal by special leave arises from the judgment
of the learned single Judge of this Allahabad High Court,
made on April 21, 1978 confirming the decree of the trial
Court and appellate Court granting a perpetual injunction
against the appellant and the second defendant restraining
them from making any construction on the land in dispute, as
shown in the map annexed to the plaint and also mandatory
injunction to demolish the construction in so far as it
relates to the construction on such land. The second
defendant remained ex-parte in the trial Court and the
decree as against him had become final. The appellant/first
defendant carried the matter in appeal which was confirmed
and the second appeal was filed. Counsel appearing for the
appellant made a statement on December 6, 1976 that he was
not seeking any relief against the second defendant and the
decree as against the second defendant having become final,
he was not proposing to take out any service of notice on
the second defendant. As a result, the Court noted on that
date that "The effect thereof should be brought to the
notice of the court" when the appeal was to be heard on
merits. Consequently, when the matter had come up for
hearing on merits, the learned Judge proceeded on the
premise that the decree as against the second defendant
being joint and inseperable, the same had become final, as
against the second defendant; it was abated and so it would
not be proper to go into the merits in the matter. As a
consequence, the appeal also was dismissed without going
into the merits, as contended by the appellant. Thus, this
appeal.
Palpably, the view taken by the High Court is not
correct. The question of abatement of the appeal does not
arise because this is not a case of any of the parties
expiring pending proceedings followed by omission to bring
the legal representatives on record. In that situation only,
the appeal gets abated. But when the decree as against one
of the defendants has become final and is either not
contested or is not carried in appeal, the decree becomes
enforceable as against the defendant who suffers the decree.
But when one of the defendants contests the correctness of
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the decree, necessarily, it has to be examined whether the
finding recorded and the decree passed by the trial Court,
as affirmed by the appellate Court, is correct in law. But,
unfortunately, the High Court has not gone into the
question. The only course then open is remittance of the
matter for consideration by the High Court on merits.
Unfortunately, this Court has dispensed with the printing
and directed the appeal to be heard on the basis of the
material placed in the SLP pater book, The appellant has not
placed on record the judgment and decree of either the trial
Court or the appellate Court. Under these circumstances, we
are not in a position to know what were the reasons given by
the trial Court and as affirmed by the appellate Court in
granting the decree against the appellant. Under these
circumstances, we think that no useful purpose would be
served in remitting the matter after two decades.
The appeal is, accordingly, dismissed. No costs.