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1995 DIGILAW 223 (CAL)

Debendra Chandra Dalui v. Jagat Sharma

1995-06-30

Bijitendra Mohan Mitra

body1995
JUDGMENT Bijitendra Mohan Mitra, J. The present revisional application is directed against Order No. 23 dated 20th May, 1995, passed by the learned Assistant District Judge, 6th Court, Alipore in Misc. Case No. 1/95 arising out of the proceeding under Order 41, Rule 21 of the Code of Civil Procedure. The connected application has been filed by the opposite party contending, inter alia, that the said misc. case is not maintainable per se. It has been alleged that the respondent in the appeal was not given any notice by the Appellate Court for appearance in the hearing of the appeal by the learned District Judge after considering the fact that the said respondent/petitioner did not appear in the suit. After considering the facts of the case by the said order a direction was passed that the appellant in the said appeal would not be required to cause service of any notice of the appeal in terms of Order 41, Rule 14(3) of the Code of Civil Procedure. With that end in view of the matter there was no scope for the respondent to participate in the hearing of the appeal and as such there was no scope to apply before the Court for restoration of the appeal under Order 41, Rule 21 of the Code of Civil Procedure. It has been further challenged by the revisionist petitioner that Order 41, Rule 21 is hopelessly barred by limitation inasmuch as the appeal was disposed of on 14th February, 1994 whereas the application under Order 41, Rule 21 was filed on 12.1.1995. The respondent in the said appeal contended that as no notice was issued to him, there was no scope for him to appear in the said appeal. It was alleged that the respondent in the appeal came to know of the passing of the decree when it was sought to be put to execution. 2. It is required to be mentioned at the very outset that an order passed under Order 41, Rule 21 of the Code of Civil Procedure is open to appeal and is made distinctly appellable in terms of Order 43, Rule 1(t) of the Code of Civil Procedure. It is salient to observe that disposal of such applications should not be made in a piecemeal manner. It is salient to observe that disposal of such applications should not be made in a piecemeal manner. From the reading of the objection filed in the Court below, it appears that namely twofold objections are raised :- 1. Exemption of service of notice in terms of Order 41, Rule 14(3) of the Code of Civil Procedure and point of limitation are taken up. Though the Court below has opined that such misc. case arising out of a proceeding under Order 41, Rule 21 of the Code of Civil Procedure is maintainable and it has fixed the hearing of the misc. case on 17th June, 1995, the learned District Judge ought to have dealt with the application both on merit as well as on maintainability but should not have shelved the point for determination of merit on a future date leading to prolongation and/or procrastination of the proceeding. However, 'in the impugned order the same has been attempted to be disposed of in a piecemeal way. 3. In spite of incorporation of Sub-Rule 4 under Order 41, Rule 14, Sub-Rule (5) contemplates that nothing in Sub-Rule (4) shall bar the respondent referred to in the appeal from defending it. It has been held in the case of Gyanammal vs. Abdul, reported in 1995 Mad 223 that is, in substituted service it is open to the respondent to show that he had no knowledge. 4. Whenever service of summons on a party respondent is dispensed with, the same is done at the risk of the party who is entrusted with the carriage of the proceeding. During the pendency of the appeal before the Court of First Appeal, the appellant therein took the risk by making a prayer for not effecting service on the respondent. If the respondent is a party in the pending appeal, such respondent cannot be denied the right of hearing in the appeal if the said respondent clamours for the same. Order 41, Rule 21 of the Code of Civil Procedure provides that if a party respondent is prevented by sufficient cause from making any appearance in the appeal, such party should be afforded with opportunity if reasonable cause is shown. Here, in the instant case before the stage of reasonable cause for abstinence from the proceeding as arisen, a party has not been served with the notice of the hearing of the same. Here, in the instant case before the stage of reasonable cause for abstinence from the proceeding as arisen, a party has not been served with the notice of the hearing of the same. If the party is denied the opportunity of hearing or participation in appeal then such party cannot be left out from the sworn of hearing. The respondent had no scope nor any opportunity to appear in the hearing of the appeal as no notice was even served on such respondent and as such he had no scope to apply before the Court for restoration of the appeal. The party respondent in the appeal before the Appellate Court was prevented from appearing in appeal because of an order passed by the learned District Judge waiving service of notice of appeal under Order 41, Rule 14 of the Code of Civil Procedure which must be deemed as an act of Court. If a party respondent is prevented by act of Court to appear before the Appellate. Court to contest the appeal, such respondent should not be visited with the brunt of consequence flowing from the same. A reference may be made in this context to the case of Smt. Anjali Roy vs. State of West Bengal & Ors., reported in AIR 1952 Cal 825 at para 10 of page 828 where this High Court has laid down: "Order XLI, Rule 14(3) empowers the Court to dispense with service of notice of the appeal on respondents who has not appeared 'in the Court below but the power is only discretionary. Even when the power has been exercised it is atleast a question whether although the Constitution of the appeal may not become defected but Writs can be issued on parties not, served with the notice of appeal. The question may be raised in an ancillary proceeding about the effect of nonappearance of such respondent in the appeal." 5. Even when the power has been exercised it is atleast a question whether although the Constitution of the appeal may not become defected but Writs can be issued on parties not, served with the notice of appeal. The question may be raised in an ancillary proceeding about the effect of nonappearance of such respondent in the appeal." 5. If the legislative intent behind incorporation of Order 41, Rule 21 of the Code of Civil Procedure is to afford an opportunity to a respondent to participate in the hearing of an appeal if it is heard ex parte when he was prevented by sufficient cause, the same would apply more so without not to speak of notice but he was prevented because .of act of Court under Order 41, Rule 14(3) of the Code of Civil Procedure from making any appearance at the stage of the appeal. In between the two contingent situations namely where a party respondent is prevented by sufficient cause to appear and contest the appeal and in a given case where he is prevented from making any appearance because of the act of the Court then such person should be afforded with opportunity to contest the appeal because the said respondent stands on a better footing. Accordingly, it is held that there is no substance in the contentions sought to be raised that Order 41, Rule 21 is not maintainable where service of notice is dispensed with. If a party respondent is prevented from making any appearance in an appeal either for want of notice or he is prevented from making appearance due to sufficient reason in both of such cases, according to considered opinion of this Court, Order 41, Rule 21 of the Code of Civil Procedure should squarely apply. The learned Judge has rightly held that proceeding 'in such case under Order 41, Rule 21 of the Code of Civil Procedure is maintainable. In view of the matter not being decided on merits, this Court is left with no other alternative but to direct the 6th Court of Assistant District Judge, Alipore to hear the misc. case on merits immediately so that decision on such a proceeding may reach 'its finality. Subject to the above observations the 'impugned order is al10wcd to be sustained and the revisional application fails and as such it stands dismissed. Application dismissed.