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1998 DIGILAW 71 (HP)

PAHADU v. ROSHAN LAL

1998-05-20

SURINDER SARUP

body1998
JUDGMENT SURINDER SARUP, J.—This second appeal is directed against the judgments and decrees of both the Courts below dismissing the suit of the plaintiff-appellant. 2. The plaintiff-appellant went to the Civil Court on the pleadings, for declaration with permanent injunction and in the alternative for possession, that the suit land measuring 22 Kanals and 18 Marlas, fully described in the plaint, was shown as 0-78-87 Hectares during settlement. It Was in his possession since long as tenant-at-will under defendant No. 1. The entry appearing in favour of the defendant No. 1 is wrong, illegal and not binding on him and the defendants should be restrained from interfering in his possession. 3. The suit was contested by the defendants-respondents and various issues were framed by the trial Court including the issue of limitation. After appreciating evidence, the trial Court came to the finding that the plaintiff has not been able to prove his case, therefore, dismissed the suit. 4. The plaintiff-appellant then filed an appeal which was decided by the Court of Shri M.R. Chaudhary, the then District Judge, Kangra at Dharamsala by his judgment and decree dated 5.6.1992. He also dismissed the appeal. 5. I have heard the learned Counsel for the parties and I have also examined the record. 6. It is not necessary to go into the merits of the case, in as much as, it is clear from the heading of the judgment of the lower appellate Court that none was present before him for the appellant-plaintiff. Neither the plaintiff-appellant nor his Counsel were present, however, on behalf of the respondents-defendants, the presence of Shri S.C. Uppal, Advocate, has been recorded. Strangely enough, in the body of the judgment in para No. 13 thereof, it has been mentioned as follows:— "I have heard the learned Counsel for both the parties at length and perused the record including the impugned judgment and decree under appeal.” 7. I have heard the learned Counsel for the parties. 8. Since there is a contradiction from the heading of the judgment where the presence of none is shown in the appeal and in para No. 13 of the judgment, it is mentioned that the learned Counsel for both the parties were heard, I have no option, but to refer to the record of the lower Appellate Court. 8. Since there is a contradiction from the heading of the judgment where the presence of none is shown in the appeal and in para No. 13 of the judgment, it is mentioned that the learned Counsel for both the parties were heard, I have no option, but to refer to the record of the lower Appellate Court. Perusal of the same discloses that an order had been recorded on 5.6.1992 mentioning that arguments have been heard and by separate judgment, the appeal is dismissed. However, it is mentioned therein that none was present for the appellant and Shri S.C. Uppal, Advocate appeared for the respondents. It is thus crystal clear that the appeal has been decided on merits by the learned lower Appellate Court in the absence of the appellant as well as his learned Counsel without giving either one of them any opportunity of being heard. Manifestly, this judgment is illegal and deserves to be set aside. 9. Order 41, Rule 17, Civil Procedure Code clearly provides for dismissal of appeal for appellants default. It says 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 is dismissed. If any doubt is there as to what is the procedure to be followed, in such eventuality, the same has been cleared by the Explanation below the said Rule. The same says that nothing in this sub-rule i.e. (1) shall be construed as empowering the Court to dismiss the appeal on the merits. In the present case, it is obviously what has been done by the lower Appellate Court. 10. The circumstances as spelled out in detail hereabove, clearly show the utter casual approach of the Presiding Officer of the lower Appellate Court. It appears that he did not apply his mind at all to this aspect of the case nor did he advert to the mandatory provisions referred to above. It is apparent from the fact that whereas it is clear from the record that none was present for the appellant when the appeal was being heard by the lower Appellate Court, yet it is mentioned in para No. 13 of the impugned judgment that Counsel for both the parties have been heard. It is apparent from the fact that whereas it is clear from the record that none was present for the appellant when the appeal was being heard by the lower Appellate Court, yet it is mentioned in para No. 13 of the impugned judgment that Counsel for both the parties have been heard. To say the least, the entire approach of the Presiding Officer of the lower Appellate Court calls for adverse comments and is to be deprecated. 11. It would be fair to mention here that neither in the grounds of appeal nor in the substantial questions of law formulated in the memorandum of appeal, there is not even an oblique reference to the effect that the appeal was heard on merits in the absence of the appellant or his learned Counsel. It appears that this aspect of the case completely slipped from the mind of the appellant also. Notwithstanding the above glaring omission, the fact remains that the lower Appellate Court has rendered the impugned judgment and decree in utter violation to the mandatory provisions of law and in order to do substantial justice inter-parties, this Court will be failing in its duty by not setting aside the impugned judgment and decree merely on the technical ground that this point has not been raised either in the grounds of appeal or in the substantial questions of law framed therein. 12. For the reasons recorded above, this appeal is accepted. The judgment and decree of the lower Appellate Court are set aside and the case is remanded back to it for re-hearing in accordance with law, in the light of the observations contained hereinabove. Parties through their learned Counsel are directed to appear before the District Judge, Kangra at Dharamshala on 24.6.1998. The records of both the Courts be remitted forthwith. Appeal allowed.