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Judgment
Ram Mohan Reddy, J.—The Civil Judge (Sr. Dn..), Challakere, in R.A. No. 83-/2002 has recorded thus on 01.10.2005:
Appt - CSK
Respt - HVS
As no arguments advanced, case is posted for judgment.
Judgment by 01.12.2005.
So also in R.A. No. 88/2002 has passed the following
Order on 01.10.2005:
Appt - CSK
Respt - HVS
As no arguments advanced, case posted for judgment.
Judgment by 01.12.2005.
Thereafterwards, the lower appellate Court has passed a common judgment and decree dated 1st December 2005 allowing the appeals. Appeals were admitted on 27.10.2010 on the following substantial question of law:--
Whether in the facts and circumstances of the case, the appellate Court was justified in holding that Ex. D-1 does not confer title to the appellant and the order passed by the Deputy Commissioner in proceedings bearing No. MUN(1) 277/81-82 is vitiated in law and the respondent has proved his title based on Ex. P-1 without pleadings or issue?
Order 41 Rule 17 of the C.P. C., requires of the Lower Appellate Court to hear the Appeals by extending an opportunity of hearing to the parties. Hence, the following additional substantial question of law:--
Whether the Lower Appellate Court was justified in allowing the appeals on merits by the common judgment and decree, without hearing the parties in accordance with Order 41 Rule 17 of the CPC?
In the light of Order 41 Rule 17 CPC, the lower appellate Court could not have passed the common judgment and decree allowing the appeals on merit, but to have dismissed the appeals for non-prosecution. In that view of the matter, there is a denial of justice to the parties and hence, the judgment and decree of the lower appellate Court stands vitiated. This, in my opinion, is an error apparent on the face of the record. The additional substantial question of law is answered in the negative.
Appeals are accordingly allowed. The common judgment and decree of the lower appellate Court is set aside and the proceeding remitted for consideration afresh and to pass judgment after extending reasonable opportunity of hearing to the parties.
Registry to forthwith forward the papers to the lower appellate Court.