Judgement This is an application under S.115 of the Code of Civil Procedure, for short, "the Code", directed against the Order dated 21-12-1981 passed by the District Judge, Dibrugarh, in Title Appeal No. 1 of 1981, dismissing the appeal of the petitioner-defendant for appellants default. 2. In the Title Appeal preferred by the petitioner, Shri L. Hazarika, a just engaged lawyer filed an application on 21-12-1981, the date on which the appeal was posted for hearing, praying that he required 15 days time to prepare and argue the case. It was stated in the petition that, Shri Biman Barua, Advocate who had filed the appeal, left the charge of the case expressing his inability to argue the case on 21-12-1981 on some personal ground. Shri L. Hazarika, learned counsel categorically stated that he was engaged only on 21-12-1981 and he could not prepare the appeal after going through the papers. The prayer was turned down and the appeal was dismissed for non-prosecution, when learned counsel Shri Hazarika fairly conceded that he was not in a position to argue the appeal on that date. 3. It emerges clear that Shri Biman Barua, Advocate had left the charge of the case and the petitioner-appellant had to engage Shri L. Hazarika to argue the appeal. Under this thorny circumstance, it is hardly possible to blame the appellant-petitioner, as he did everything possible to engage a lawyer had left the charge of the appeal. (Sic) Similarly, by no means it can be said that the prayer of Shri Hazarika to grant him a short adjournment was unjust or unreasonable. In fact, learned District Judge did not reach the conclusion that either the appellant was blame worthy or learned counsel Shri L. Hazarika had asked for adjournment without rhyme or reason. There is no inkling in the impugned order as to why the appeal could not be adjourned for a short period. As learned counsel informed the court that he was not prepared to argue the case on that date, learned Judge dismissed the appeal holding that the appellant did not appear when the appeal was called on for hearing. 4. It is thus seen that the appellant did everything within his means to engage a lawyer for the appeal. As learned counsel informed the court that he was not prepared to argue the case on that date, learned Judge dismissed the appeal holding that the appellant did not appear when the appeal was called on for hearing. 4. It is thus seen that the appellant did everything within his means to engage a lawyer for the appeal. As the lawyer who had been engaged by him suddenly expressed his inability to argue the case the only alternative left for the appellant-petitioner was to engage another counsel. The petitioner did so, as such, no negligence can be attributed to the appellant. Similarly, Shri L. Hazarika who was engaged by the appellant stated that he was just engaged and should be given some time to prepare the appeal and argue the same could not be held at fault nor his action praying for a short adjournment be considered unjust or unreasonable. 5. The sole question for determination is whether learned District Judge has exercised the power of dismissal acting within the limits of O.41 R.17(1) of the Code. O.41 R.17(1) rules 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. Whereas the O.41 R.17(2) provides, where the appellant appears and the respondent does not appear the appeal shall be heard ex parte. Under this circumstance, when the appellant appears but the respondent does not appear the appeal must be heard ex parte. However, O.41 R.17(1) grants a discretionary power to the court, it may dismiss an appeal or it may not. Further, dismissal is not the automatic consequence if the appellant does not appear on the date of hearing. O.41 R.17(1) lays down a condition precedent, namely, that the court must "make an order" that the appeal be dismissed. As such, the court is not obliged to dismiss an appeal, it may dismiss or may not dismiss the appeal. If it decides to dismiss the appeal it must "make an order". It shows that an order of dismissal can be made only after making an order. In the instant case "there is no order" holding that there was any fault on the part of the appellant to prosecute the appeal. If it decides to dismiss the appeal it must "make an order". It shows that an order of dismissal can be made only after making an order. In the instant case "there is no order" holding that there was any fault on the part of the appellant to prosecute the appeal. Similarly, learned Judge did not find any fault with Shri L. Hazarika, learned counsel who was engaged on that date to argue the appeal. As such, in my opinion there was "no order" of dismissal as envisaged in O.41 R.17(1) of the Code. At any rate, without holding that the appellant or his learned counsel was negligent and/or the ground for adjournment was unjustified, learned Judge should not have dismissed the appeal for default of the appellant. 6. To dismiss an appeal being a serious business, Parliament thought it fit that merely on the ground of absence of the appellant, an appeal may not be dismissed. The appellate court must make an order, give reasons why it had to take such a calamitous action. The order must be a reasoned one. An order of dismissal of an appeal is equivalent to non-suiting a party. As such the power of dismissal of an appeal must be based on an order holding that the court could not postpone the hearing of the appeal to some other date. 7. Be that as it may, the petition must be allowed on the authority of the decisions of the Supreme Court in Rafiq v. Munshilal (1981) 3 SCR 509 : AIR 1981 SC 1400 ; Goswami Krishna Murarilal Sharma v. Dhan Prakash (1981) 4 SCC 574 ; Smt. Lachi Tewari v. Director of Land Records AIR 1984 SC 41 . In the instant case the appellant-petitioner was penalised. However, I fail to find what more could be expected of him. What more steps should he have taken in the matter to avoid his case being dismissed for default? Dealing with this aspect, in Rafiq (supra) their Lordships stated thus :- "The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job". In Goswami Krishna Murarilal Sharma (supra) the same view was reiterated. Similarly in Smt. Lachi Tewari (supra) their Lordships further confirmed the view. In the instant case the just engaged lawyer could not be held responsible for asking a short adjournment. It is not possible to comprehend what more steps should the appellant have taken in the appeal, to avoid the order of dismissal. In the instant case the appellant had done everything within his power to effectively participate in the appeal. He was rest assured that he was not to do anything in the appeal as the lawyer would look after his interest. There was no short-fall or laches on the part of the appellant-petitioner. Learned District Judge also could not find any fault with the appellant. It is difficult to pinpoint any laches on the part of Shri L. Hazarjka, in seeking adjournment. His prayer was quite rational. Under these circumstances the impugned order of dismissal of appeal cannot be sustained. 8. I am constrained to hold that the impugned order has occasioned a miscarriage of justice. Learned Judge did not "make an order" containing any reason why he held that the appellant was absent and/or he was negligent and there was imperative necessity for dismissing the appeal, on that date without granting a short adjournment. 8. I am constrained to hold that the impugned order has occasioned a miscarriage of justice. Learned Judge did not "make an order" containing any reason why he held that the appellant was absent and/or he was negligent and there was imperative necessity for dismissing the appeal, on that date without granting a short adjournment. In any view of the matter the order cannot be sustained in view of the law laid down by the Supreme Court in Rafiq ( AIR 1981 SC 1400 ) (supra); Goswami Krishna Murarilal Sharma ( 1981 (4) SCC 574 ) (supra) and Smt. Lachi Tewari ( AIR 1984 SC 41 ) (supra). Mr. A. K. Choudhury, learned counsel for the opposite party fairly concedes to this position. Mr. Choudhury submits that the opposite party suffered a lot in view of the delay in disposal of the case and prays that the revision may be allowed but the opposite party may be awarded costs. Under these circumstances I set aside the impugned order with cost of Rs. 200/- payable by the petitioner to the opposite party. I direct the parties to appear on 25-10-1984 before the learned District Judge, Dibrugarh. On that date learned District Judge shall fix a date of hearing and make every endeavour to dispose of the appeal as expeditiously as possible. Order accordingly. AIR 1985 GAUHATI 106 "Phusong Lam v. Dy. Commr., Shillong" GAUHATI HIGH COURT Coram : 2 K. LAHIRI AND K. N. SAIKIA, JJ. ( Division Bench ) Phusong Lam, Petitioner v. The Deputy Commissioner, Khasi Hills, Shillong and others, Respondents. Civil Rule No. 194 of 1976, D/- 22 -8 -1984. Constitution of India, Art.226 - WRITS - EVICTION - Eviction from Government land - Public purpose and public convenience have to be considered - Still citizens fundamental or other legal rights in the land should not be violated. Although in the matter of eviction of occupants from the Government land public need and public convenience should count, it should not be done in breach of their fundamental or other legal rights. They should be given an opportunity to establish their rights in the land or rights against eviction therefrom. Civil Appeal No. 509 of 1983 D/-24-1-1983 (SC) Followed. (Para 4) Cases Referred : Chronological Paras (1984) Civil Rule No. 165 of 1977 D/-1-2-1984 (Gauh) Ramesh Chandra Deb v. Dy. Commr. Khasi Hills Dist. They should be given an opportunity to establish their rights in the land or rights against eviction therefrom. Civil Appeal No. 509 of 1983 D/-24-1-1983 (SC) Followed. (Para 4) Cases Referred : Chronological Paras (1984) Civil Rule No. 165 of 1977 D/-1-2-1984 (Gauh) Ramesh Chandra Deb v. Dy. Commr. Khasi Hills Dist. Shillong 3, 4 (1984) Civil Rule No. 222 of 1977 D/-9-8-1984 (Gauh) Jawharlal Bahirwani v. Dy. Commr. Khasi Hills Dist. Shiliong 3 (1983) Civil Appeal No. 509 of 1983 D/-24-1-1983 (SC) Kuteswar Bishwas v. State of Assam 3 (1983) Civil Rule Nos. 157 to 161 of 1977 D/-7-11-1983 (Gauh) Nalini Kanta Sen v. Dy. Commr. East Khasi Hills 3 S.C. Das, for Petitioner: A. Sarma, Govt. Advocate, Meghalaya, for Respondents. Judgement LAHIRI, J. :- At the request of the learned counsel for both the parties, the matter has come up for hearing. 2. Unnecessarily the Civil Rule is pending for so many years when it could have been disposed of within a matter of minutes. Eviction from Government land for public purpose and public convenience is the need of the hour. However, it should not be done in breach of any fundamental right or other legal rights of the occupants. 3. We have heard Mr. S.C. Das, learned counsel for the petitioner and Mr. A. Sarma learned Government Advocate, Meghalaya. We have perused the writ petition and also orders passed in Civil Rules 157/77 to 161/77, Nalini Kanta Sen v. Deputy Commissioner, East Khasi Hills decided on 7-11-1983 Civil Rule 165/77 Ramesh Chandra Deb v. The Deputy Commissioner, Khasi Hills District, Shillong decided on 1-2-1984 and Civil Rule No. 222 of 1977, Shri Jawharlal Bahirwani v. The Deputy Commissioner, Khasi Hills District, Shillong decided on 9-8-1984. Relying on an order of their Lordships in the Supreme Court passed in Civil Appeal No. 509 of 1983, Kuteswai Biswas v. State of Assam wherein their Lordships passed the following order : "We are of the view that in this particular case having regard to the peculiar facts and circumstances it will meet ends of justice if the appellants are allowed an opportunity to file their respective applications for settlement of land as also their objections, if any against the notices for eviction, before the end of February 1983 if any such applications or objections have already been filed or are filed within the time granted by this order, the Deputy Commissioner or any other appropriate authority will dispose of such applications and objections in accordance with law as early as possible and preferably before 16th April 1983. If a request is made by any of the appellants in the objections filed by them against the notices of eviction that they should be personally heard, the Deputy Commissioner or other appropriate authority will give personal hearing to the appellants concerned before disposing of their objections. The appeal is disposed of accordingly. There will be no order as to costs. New Delhi January 24, 1983 Sd/- E. S. Venkataramiah Sd/- P. N. Bhagwati, We dispose of the Civil Rules in the light of the observations and directions contained therein. 4. Upon hearing learned counsel for the parties and on perusal of the records, we feel that similar order need be passed in the instant case as it will meet ends of justice if the petitioner is given an opportunity to file application establishing his right in the land in question as also his other objections against the notice of eviction issued against him. Accordingly, we grant the said opportunity, but the petitioner must file the application/ objection by the end of September, 1984. On receipt of the application and upon hearing the objection, the Deputy Commissioner, Khasi Hills, Shillong should dispose of the proceedings as expeditiously as possible in the light of our observations made in Civil Rule 165 of 1977 (supra). 5. In the result, the petition is accepted to the extent indicated above. However, there will be no order as to costs. Petition partly allowed.