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2022 DIGILAW 300 (HP)

Ashok Khanoja, S/O Sh. Darshan Singh v. Harbans Singh, S/O Sh. Pyare Singh

2022-06-16

AJAY MOHAN GOEL

body2022
JUDGMENT : By way of this appeal, the appellant has assailed the judgment and decree passed by the Court of learned Senior Civil Judge, Solan, in Civil Suit No. 39/1 of 2008, titled as Harbans Singh Vs. Ashok Khaneja, decided on 24.07.2019, in terms whereof, the suit filed by the respondent for recovery of Rs. 1,50,000/- was decreed with interest and also the judgment and decree passed by the learned Appellate Court in Civil Appeal 31-S/13 of 2019, titled as Ashok Khaneja Vs. Harbans Singh, decided on 17.01.2020, in terms whereof, an appeal preferred by the present appellant against the judgment and decree passed by the learned Trial Court was dismissed. 2. When this case was taken up for the purpose of admission, the Court was apprised that the suit of the respondent/plaintiff was earlier decreed on 16.07.2009 by the Court of learned Civil Judge, Senior Division, Solan, District Solan, H.P., and the same was an ex parte decree passed in favour of the plaintiff. 3. Mr. Romesh Verma, learned counsel appearing for the appellant has informed the Court that an application was filed for setting aside the ex parte decree which was allowed in favour of the appellant and thereafter the matter was heard afresh and it resulted in the passing of the decree in favour of the respondent herein by the learned Trial Court on 24.07.2019. 4. The judgment and decree so passed by the learned Trial Court on 24.07.2019 has been affirmed by the learned Appellate Court vide judgment and decree dated 17.01.2020. 5. Incidentally, the learned Judge who adjudicated the lis in his capacity as Civil Judge, Senior Division Solan, District Solan, H.P., on 16.07.2009, again decided the same in appeal in his capacity as learned District Judge Solan, while passing judgment and decree dated 17.01.2020. 6. This being the factual position, the present appeal deserves to be allowed by setting aside the judgment and decree passed by the learned District Judge as the adjudication of the appeal by the same learned Presiding Officer as Appellate Court, who had earlier decided the lis in his capacity Civil Judge, Senior Division, in the considered view of this Court vitiates the proceedings. This Court is not making any observation with regard to the bona fide of either the party or the learned Judge concerned because it appears that this aspect of the matter escaped the notice of learned District Judge while deciding the appeal nor he was apprised of this fact by the learned counsel appearing for the parties but still interest of justice demands that the appeal at the first instance ought to be heard by learned Judge other than the one who decided the same may be in some other capacity at the level of the Trial Court. 7. In this view of the matter without going into the legal issues raised in this appeal by Mr. Romesh Verma, this appeal is allowed by setting aside the judgment and decree passed by learned Appellate Court and by remanding the matter back to the Court of learned District Judge Solan, with the request to the District Judge to decide the appeal afresh as expeditious as possible and if convenient, subject to the roster of learned Judge, on or before 31.03.2023. Parties through counsel are directed to appear before the learned Appellate Court on 18.07.2022. Record be sent back to the Court below.