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1970 DIGILAW 65 (GAU)

Douzakham v. Thansei

1970-08-10

R.S.BINDRA

body1970
ORDER : In this revision petition by the plaintiff Douzakham the validity of the order dated 15th of February 1969 by which the Additional District Judge. Manipur, rejected his application for restoration of appeal dismissed in default, is challenged. 2. The appeal was originally pending with District Judge, Manipur, who by his order dated 22-8-1968 made the same over to the Additional District Judge, Shri P.N. Roy, with the direction to the parties to appear before the latter on 29-8-1968 for further orders. When the appeal was taken up by Shri P.N. Roy on 29-8-1968 the appellant and his counsel did not put in appearance though the respondents were represented by their counsel. The appeal was consequently dismissed by Shri P.N. Roy on that day in default of appearance of the appellant. On 28th of November 1968 Douzakham made an application in the Court of Shri P.N. Roy praying for readmitting the appeal at its old number. That application was accompanied by another application under Section 5 of the Limitation Act praying for condoning the delay if any. The application for restoration was opposed by the respondent. The learned Additional District Judge ultimately disallowed the same on the findings that the appeal had not been dismissed under Rule 17 of Order XLI, Civil Procedure Code, hereinafter called the "Code" that as such the application for restoration should be taken as having been made not under Rule 19 of that Order but under Section 151 of the Code, and that there were no sufficient grounds for allowing the petition for restoration under the latter provision. Aggrieved by the dismissal of the restoration application, Douzakham has come up in revision to this Court. Appeals are filed under Rule 1 of Order XLI and they are admitted under Rule 9 of the same Order. Rule 11 gives power to the Appellate Court to dismiss an appeal in limine after, of course, giving a hearing to the appellant or his pleader. Rule 12 (1) states that unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal, and notice of that date shall be sent both to the respondent as well as to the Court from whose decree the appeal is preferred. Rule 12 (1) states that unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal, and notice of that date shall be sent both to the respondent as well as to the Court from whose decree the appeal is preferred. Rule 15 enjoins that the notice to the respondent shall declare that if he does not appear on the date fixed, the appeal will be heard ex parte Just below Rule 15 comes the heading "Procedure on hearing". Then comes Rule 16 which provides that on the date fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal, and if the Court does not dismiss the appeal at once the respondent shall address the Court and thereafter the appellant shall be entitled to reply. Rule 17 (1) states that where on the day fixed or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Sub-rule (2) of Rule 17 prescribes that where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. 3. It will be noticed that after the stage for hearing of appeal, subsequent to the service of the notice on the respondent, is reached, Order XLJ contemplates dismissal of the appeal in default of appearance of the appellant only on the day fixed for hearing of the same or on any other day to which the hearing may be adjourned vide Rule 17 (1). It follows that if the appeal on a given date is not fixed for hearing but for some other purpose, and there can be a variety of such purposes, the Code does not provide for dismissal of appeal in default of appearance by the appellant. Although the parties counsel in this appeal stated at the bar on the date of arguments that there is no authority on the exact interpretation of Rule 17 (1), but I have noticed that the point is not res integra. 4. Although the parties counsel in this appeal stated at the bar on the date of arguments that there is no authority on the exact interpretation of Rule 17 (1), but I have noticed that the point is not res integra. 4. In Jangir Kaur v. Bant Singh, AIR 1954 Pepsu 27, it was held by Chopra, J., that when "the appeal was fixed for return of notices on and hearing of an application by one of the respondents to implead the legal representatives of a deceased respondent, and not for hearing the appeal itself, and the appellants or their counsel did not put in their appearance on that day the appeal could not be dismissed for default". In the case of Dhapan v. Ram Saran, AIR 1957 Punj 80, Bhandari, C. J., observed that where the date fixed for hearing of an appeal is declared as holiday in an unanticipated manner and under the rule, by which the appellate Court is governed, the appeal stands automatically adjourned to the next working day and the appellant fails to appear on the latter date, the appeal cannot be dismissed in default as that date was not a date of hearing but only for the parties or their counsel to attend Court so that the next date of the hearing may be fixed in their presence. The decision in Ata Muhammad v. Shankar Das, AIR 1924 Lah 279, also lends support to the proposition that an appeal cannot be dismissed in default under Rule 17 of Order XLI on a date not fixed for the hearing thereof. 5. Shri T. Bhubon Singh, representing the respondent cited Digendra Chandra Pal v. Radha Ballav Pal, AIR 1953 Assam 191, to support the contrary view when I brought the three authorities referred to in the preceding paragraph to his notice. I have studied this Assam report carefully but have found the same clearly distinguishable on facts. That case is actually an authority for the proposition that under the present R.17 the Court is not boundto dismiss an appeal in default of appearance of the appellant but it may do so. Actually, that appears to be the burden of sub-rule (1) of Rule 17 as is brought out clearly by the concluding words "the Court may make an order that the appeal be dismissed". Actually, that appears to be the burden of sub-rule (1) of Rule 17 as is brought out clearly by the concluding words "the Court may make an order that the appeal be dismissed". Under the terms of the old Civil Procedure Code, the Court was bound to dismiss the appeal where the appellant failed to appear on the date fixed for hearing of the same. Therefore, nothing stated in the case of Digendra Chandra, AIR 1953 Assam 191 lends support to the view that the Appellate Court can dismiss the appeal in default of the presence of the appellant even on the date on which it is not fixed for hearing. The facts of this Assam case were that when the appeal of the defendant came up for hearing before the Additional District Judge, he (the defendant) and his counsel were absent while the respondent was represented in Court. The Court did not dismiss the appeal in default but instead decided it on merits. The High Court held that in terms of Rule 17 the Court could have dismissed the appeal by reason of the absence of the appellant though it was not obligatory on it to do so, and that the only other course open to the Court was to adjourn the appeal. The High Court observed further that the Appellate Court had no power to proceed to decide the appeal on the merits in the absence of the appellant or his counsel. Clause (2) of Rule 17, the High Court observed, supports that interpretation of the Rule. It is apparent that the point that arises for determination in the instant revision petition was debated before the High Court. 6. In the result, I hold that both on the plain language of Rule 17 and on authority the appellate Court has no jurisdiction to dismiss the appeal in default of the presence of the appellant on a date not fixed for hearing of the appeal. Since in our case, by common agreement, the appeal was not fixed for hearing on 29-8-1968, the appellate Court could not have dismissed the same in default under Rule 17. There is no other provision under which the Court could have dismissed the appeal in default. Therefore, the dismissal was without jurisdiction, and if so there is no room for doubt that the appeal has to be restored to its old number. There is no other provision under which the Court could have dismissed the appeal in default. Therefore, the dismissal was without jurisdiction, and if so there is no room for doubt that the appeal has to be restored to its old number. Consequently, I allow the revision petition and on quashing the impugned order of the Additional District Judge remand the case to him with the directions that the appeal should be readmitted at its old number and heard on merits after giving notice to the parties. However, I leave the parties to bear their own costs. Revision allowed.