1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant- original plaintiff-original respondent no. 1 to quash and set aside the impugned judgment and order passed by the learned Additional District Judge, Morbi dated 05/09/2011 in Regular Civil Appeal No. 36/2006 by which in the Appeal preferred by the respondent no. 1 herein-original defendant no. 1 only the learned appellate Court has quashed and set aside the judgment and decree passed by the learned Second Joint Senior Civil Judge, Morbi dated 25/09/2006 in Special Civil Suit No. 14/2001 and remanded the matter to the learned trial Court for deciding the said suit in accordance with law and on its own merits solely on the ground that the summons upon original defendants nos. 2, 3 and 4 were not properly served.
2. It appears that the appellant-original plaintiff instituted Special Civil Suit No. 151/1993, which was subsequently re- numbered as 14/2001 in the Court of learned Second Joint Senior Civil Judge, Morbi for specific performance of agreement to sell executed by respondent no. 1- original defendant no. 1- respondent no. 1 and for permanent injunction. It appears that the learned trial Court proceeded further with the suit ex parte so far as respondents nos. 2 to 4-original defendants nos. 2 to 4 are concerned and though respondent no. 1-original defendant no. 1 appeared and filed the written statement he did not further participated in the proceedings. By the judgment and the decree dated 25/09/2006 the learned Second Joint Senior Civil Judge, Morbi decreed Special Civil Suit No. 14/2001. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Second Joint Senior Civil Judge, Morbi dated 29/09/2006 in Special Civil Suit No. 14/2001, respondent no. 1-original defendant no. 1 preferred Regular Civil Appeal before the learned District Court, Morbi, which came to be heard by the learned Additional District Judge, Morbi, who by his impugned judgment and order dated 05/09/2011 has allowed the said Appeal and has quashed and set aside the judgment and decree passed by the learned trial Court and has remanded the matter to the learned trial Court solely and mainly on the ground that summons upon respondents nos. 2 to 4-original defendants nos. 2 to 4 was not served properly. Being aggrieved and dissatisfied with the impugned judgment and order passed by the learned appellate Court, the appellant-original plaintiff has preferred the present Second Appeal under Section 100 of the Code of Civil Procedure.
3. It appears that respondents nos. 2 to 4-original defendants nos. 2 to 4 submitted Civil Miscellaneous Application No. 69/2006 before the learned trial Court for setting aside the ex parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure. However, in view of the impugned judgment and order passed by the learned appellate Court, respondents nos. 2 to 4-original defendants nos. 2 to 4 withdrew Civil Miscellaneous Application No. 69/2006, which has been submitted under Order 9 Rule 13 of the Code of Civil Procedure.
4. Today, when the present Second Appeal is taken up for final hearing there is a broad consensus between the learned advocates appearing on behalf of the respective parties that the impugned judgment and order passed by the learned appellate Court be quashed and set aside and the matter be remanded to the learned appellate Court to consider the said Appeal in accordance with law and on its own merits keeping all the contentions, which may be available to the respective parties, more particularly, whether in an Appeal preferred by respondent no. 1-original defendant no. 1 only, the learned appellate Court can consider the case on behalf of respondents nos. 2 to 4-original defendants nos. 2 to 4 who have not preferred the Appeal and consider their case whether the summons upon respondents nos. 2 to 4-defendants nos. 2 to 4 were duly served or not. The learned advocates appearing on behalf of the respective parties have also stated at the bar that they have no objection if Civil Miscellaneous Application No. 69/2006 preferred by respondents nos. 2 to 4-original defendants nos. 2 to 4 submitted before the learned trial Court to quash and set aside the ex parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure is also restored to file, which may be considered in accordance with law and on its own merits after giving an opportunity to all the concerned. The learned advocates appearing on behalf of the respective parties do not invite any further reasoned order while quashing and setting aside the impugned judgment and order passed by the learned appellate Court and remanding the matter to the learned appellate Court to consider the said Appeal in accordance with law and on its own merits keeping all the contentions as stated hereinabove open.
5. In view of the above, the present Second Appeal succeeds. The impugned judgment and order passed by the learned Additional District Judge, Morbi dated 05/09/2011 in Regular Civil Appeal No. 36/2003 is hereby quashed and set aside and the matter is remanded to the learned appellate Court to consider the said Appeal afresh in accordance with law and on its own merits. All the contentions, which may be available to the respective parties, inclusive of the contention that in an Appeal preferred by respondent no. 1-original defendant no. 1, the learned appellate Court can consider the case on behalf of respondents nos. 2 to 4-original defendant nos. 2 to 4 and can consider whether respondents nos. 2 to 4- defendants nos. 2 to 4 were duly served or not and the contention on behalf of the appellant-original plaintiff that in an Appeal preferred by respondent no. 1-original defendant no. 1, the appellate Court cannot consider the case on behalf of respondents nos. 2 to 4-defendants nos. 2 to 4 when they have not preferred Appeal is also kept open, which may be considered by the learned appellate Court in accordance with law and on its own merits. In the facts and circumstances of the case and considering the fact that respondents nos. 2 to 4- original defendants nos. 2 to 4 withdrew Civil Miscellaneous Application No. 69/2006, which was filed before the learned trial Court for setting aside the ex parte judgment and decree under Order 9 Rule 13 of the Code of Civil Procedure is also hereby ordered to be restored to file of the learned trial Court and the learned trial Court to consider the same in accordance with law and on its own merits after giving an opportunity to all the concerned. In the facts and circumstances of the case, the proceedings before the learned appellate Court/trial Court are ordered to be expedited.
6. With this, the present Second Appeal is modified to the aforesaid extent. No cost.
CIVIL APPLICATION No. 13597/2011 In view of the order passed in Second Appeal, no order in the Civil Application.
(M.R. SHAH, J.)
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