M. N. Shukla, A. J. - (1.) THERE is sometimes a tug of war between technicality and substantial justice, between legal niceties and the importunate demands of equity and I am inclined to hold that unless the dictates of the former are utterly compelling the voice of equity should not be choked. This is precisely what has happened in the instant case. The applicant is the respondent in a Second Appeal and has presented this application under section 151 CPC praying that the order of a learned Judge of this Court recalling his own earlier order rejecting the appeal under Order 41, Rule 11 CPC passed behind the back of this applicant be recalled. The learned Judge who passed the order has since retired and hence the case has been listed before me.
(2.) HUSAIN Baksh and another (defendant-appellants) filed a second appeal in this Court which was listed for admission under Order 41, Rule 11 CPC before Hon'ble A. N. Varma, J. on 2-9-1981 when he passed an order that the record of the lower court be summoned at the appellants' expense and meanwhile the appellants shall not be dispossessed from the house in dispute. When the copy of the stay order was filed in the executing court the plaintiff-appellant put in appearance in this Court through Sri Wajahat HUSAIN Khan, Advocate, and filed a counter affidavit. He prayed that the ex-parte stay order be vacated. The Second appeal was thereafter listed for admission on 5-4-1982 under Order 41, Rule 11 CPC before Hon. Deoki Nandan, J. as he then was, and the name of Sri Wajahat HUSAIN Khan Advocate was also shown in the cause list as counsel for the applicant. The learned Judge after hearing the counsel for the applicant and perusing the record of the case found that the appeal was concluded by findings of fact and hence dismissed the same by a speaking order and vacated the interim stay. It is alleged on behalf of the applicant that the counsel, namely, Sri Wajahat HUSAIN Khan had also assisted the Court in the disposal of the appeal. Thereafter the applicant filed in the executing court a copy of the order dated 5-4-1982 dismissing the appeal and vacating the stay order. It is stated on behalf of the applicant that he was then approached by the appellants who requested him not to execute the decree for the period during which the applicant was to remain outside India for his Haj piligrimage. The allegation is that taking advantage of the breathing space thus vouchsafed to the appellants by the applicant on account of sheer compassion the appellants turned round and instead of vacating the house in dispute applied for review of the order dated 5-4-1982. No copy of the review application was served on the counsel for the applicant nor was any notice issued to him. On 26-5-1982 the learned Judge recalled his previous order dated 5-4-1982. This was obviously behind the back of the applicant and such order cannot be sustained. It has been strenuously urged on behalf of the defendant-opposite parties by Dr. Gyan Prakash that so long as the appeal was not admitted under Order 41, Rule 11 CPC and notice issued to the respondent, the latter has no locus standi to be heard in opposition to the appellants. It was emphasised that actually speaking the listing of an appeal under Order 41, Rule 11 CPC was for the purpose of requiring the appellant to satisfy the Court as to why the appeal should not be dismissed summarily. It is contended that since the appellants had not yet overcome the hurdle of Order 41, Rule 11 CPC the respondent did not come in the picture at all and merely because he had voluntarily chosen to appear in Court with intent to opposing the stay application, it did not confer any legal right upon him to be heard for the purpose of rejecting or admitting the appeal under Order 41, Rule 11 CPC. I am not impressed with this argument and in my opinion the latter order reviewing the earlier order dismissing the appeal in the preliminary hearing was in flagrant disregard of the established canons of justice. It was manifestly unfair to the respondent. The settled practice of this Court, legality apart, has been not to pass any order behind the back of the other party likely to be adversely effected by it. No statutory provisions are required to support and implement this fundamental principle of justice. When the applicant had already put in appearance and his counsel had actually participated in the proceedings resulting in the dismissal of the appeal which order was passed in his presence, it was a manifest negation of justice to blot out that order without notice to the present applicant. The quintessence of justice is that judicial orders must be passed in the presence of the parties or their duly appointed representatives and with their full awareness of the proceedings conducted in a court of law. Justice docs not permit eaves droppers or surreptitious intruders, or hitters below the belt. The contenders must encounter each other in open arena with the Presiding Officer as the Umpire. In the case in hand the respondent's counsel obviously went away with the impression that the appeal had been dismissed under Order 41, Rule 11 CPC and the plaintiff was naturally keen to proceed with the execution of the decree and obtain possession of the house. He had even gone out of his way to accommodate the appellants by granting them time for vacating the accommodation but the appellants betrayed him by obtaining a review of the previous order without any knowledge or information to the applicant. This could be termed as nothing but gross abuse of the process of court. I am constrained to observe that the review order resulted in a travesty of justice. In my opinion the fact that the appeal had not been actually admitted under Order 41, Rule 11 CPC loses significance in a situation in which the respondent had already entered appearance and was heard by the Court. It is the latter part of the proceedings which is crucial. When an order dismissing the appeal was passed in the presence of both parties, the same should not have been altered without reference to the other party. The essential requirement of Order 47, Rule 4 CPC is that no review shall be granted "without previous notice to the opposite party". This provision is mandatory and non-compliance with the same would invalidate the review order. The dismissal of a Second Appeal under Order 41, Rule 11 CPC results in a decree and the same cannot be varied without notice to the opposite party. As held in Durga Singh v. Wahid Maza, 1964 ALJ 817 DB the doctrine of merger applies even where a second appeal has been dismissed by the High Court summarily under Order XII, Rule 11, CPC and as the appellate decree is the final decree, the decree of the lower court merges with it. I am also unable to accept the contention that the expression "opposite party" will apply only to a party receiving notice after the appeal is admitted. In my opinion the expression properly construed means a party which is interested in supporting the order which is sought to be reviewed or was reviewed-See Thirumangalath Nelliotan Ammu v. Thirumangalath Nelliotan Govindan Nair, AIR 1966 Kerala 294. Thus, I come to the conclusion that the order of the learned Judge dated 26-5-1982 reviewing the order dismissing the Second Appeal, without notice to the applicant-respondent was erroneous and it is hereby recalled. This application is accordingly allowed. I further direct that the defendant-appellants' review application shall be listed for orders before me on 9-5-1984, showing the names of Dr. Gyan Prakash and Sri Wajahat Husain Khan as counsel for the appellants and the respondent respectively in the Second Appeal. Appeal allowed.;