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2000 DIGILAW 105 (KER)

Karunakaran v. Thangamoni Amma

2000-02-14

G.SASIDHARAN

body2000
Judgment :- G. Sasidharan, J. This case is filed by the appellants praying that the appeal disposed of by this Court without hearing the counsel for the appellants on 18.1.2000 may be re-admitted and heard again. The second appeal stood posted to 18.1.2000 in the list for admission hearing. On that day, this Court on finding that there was no substantial question of law which arose for consideration in the Second Appeal, dismissed the Second Appeal. 2. According to the learned counsel appearing for the appellants he was in some other Court in connection with some other case when this Second Appeal was called on for hearing in this Court. That is stated to be the reason for the non-appearance of the learned counsel appearing for the appellants when the Second Appeal was taken up for hearing. On going through the judgment of this Court by which the Second Appeal was dismissed, it could be seen that this Court had gone into the question whether there arose any substantial question of law which had to be considered in Second Appeal and that it was after finding that no substantial question of law arose for consideration that the Second Appeal was dismissed. 3. The question which has to be considered here is whether the judgment pronounced on 18.1.2000 dismissing the appeal has to be treated as a dismissal of the appeal for default. If the dismissal of the appeal is treated as one for default even if dismissal is on the date on which the appeal stands posted for admission hearing re-admission of the appeal is permissible under 0. 41, R.19 of the Code of Civil Procedure. In the above Rule, it is stated that where an appeal is dismissed under R.11 sub-r.(2), or R.17 or R.18, the appellant may apply to the appellate Court for the re-admission of the appeal. 4. In support of the argument that the appellate Court including the Court in which Second Appeal is filed can dismiss the appeal only on default when counsel appearance for the appellant does not turn up for hearing, Explanation to R.17 of 0.41 was pointed out by the learned counsel appearing for the appellant. The above explanation says that nothing in sub-r.(1) of R.17 of 0.41 shall be construed as empowering the Court to dismiss the appeal on merits. The above explanation says that nothing in sub-r.(1) of R.17 of 0.41 shall be construed as empowering the Court to dismiss the appeal on merits. It is Jainuddin v. Badiadka Co-op Stoves Ltd. (1987(2) KLT 603), this Court found that when an appeal is disposed of on merits without hearing appellant's Advocate, petition for restoration of appeal is maintainable. Such an observation was made by this Court in the light of the explanation to sub-r.(1) of R.17 of 0.41. When the dismissal of the appeal is under 0. 41, R.17(1) of the Code of Civil Procedure, the dismissal in the absence of the counsel for the appellant can only be a dismissal for default in which case an application under 0. 41, R.19 of the Code for restoration of the appeal can be filed. 5. Dismissal of the appeal under 0. 41, R.17 of the Code is the dismissal of the appeal when the appeal stands posted for hearing. That is clear from a reading of 0.41, R.16 which says that on the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. Sub-r.(2) of R.17 of 0.41 says that the Court shall then, if it does not dismiss the. appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply. It is after saying so in 0.41 R.16 that it is stated in R.17 that where on the day fixed, or 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. The above fact would clearly indicate that 0.41 R.17 becomes applicable when the appeal is posted for hearing the appellant after issuing notice to the respondent. 0. 41, R.17 is not applicable when an appeal is posted for hearing on the question of admission of the appeal. It is r.11 of 0.41 which deals with the power to dismiss appeal without sending notice to lower Court. The dismissal of the appeal in the present case was under 0. 41, R.11(1) Code of Civil Procedure and there is no provision in O. 41, R.11 similar to the explanation to O. 41, R.17(1) of the Code of Civil Procedure. It is r.11 of 0.41 which deals with the power to dismiss appeal without sending notice to lower Court. The dismissal of the appeal in the present case was under 0. 41, R.11(1) Code of Civil Procedure and there is no provision in O. 41, R.11 similar to the explanation to O. 41, R.17(1) of the Code of Civil Procedure. That is a clear indication of the fact that when dismissing an appeal under 0.41 R.11, even if the appellant's counsel is absent, the Court can dismiss the appeal after considering the question of admission of the appeal on merits. Moreover, this is a case in which at the time of admission hearing this Court would have considered only the question whether any substantial question of law arose for consideration in the Second Appeal. In that respect of the matter, the hearing which has to be made by the Court at the time of considering the question on admission of the second appeal is different from the question to be considered by the appellate Court when considering the question of admission of a first appeal. Since, there is no provision, as adverted to earlier, which would say that an appeal could only be dismissed for default in the absence of the counsel appearing for the appellant at the stage of admission hearing, it is not possible to hold that this Court was not correct in dismissing the Second Appeal at the admission hearing stage, even if the counsel for the appellant was absent, on finding that there arose no substantial question of law for being considered in the appeal. 6. Under 0. 41, R.11(1), the appellate Court need hear the appellant or his counsel only if he appears. The dismissal of the appeal under sub-r.(1) of R.11 of 0.41 can be made after hearing or not hearing the appellant or his counsel. The dismissal of the appeal under sub-r.(1) of the above rule is on merits and dismissal of appeal under sub-r.(2) is on default. That is clear from the fact that re-admission of appeal under R.19 of 0.41 is allowed only when the appeal is dismissed under R.11 sub-r.(2). re-admission of appeal is not possible when the dismissal is under R.11 sub-r.(1). 7. Dismissal of appeal on merits can be made under 0. That is clear from the fact that re-admission of appeal under R.19 of 0.41 is allowed only when the appeal is dismissed under R.11 sub-r.(2). re-admission of appeal is not possible when the dismissal is under R.11 sub-r.(1). 7. Dismissal of appeal on merits can be made under 0. 41, R.11(1) after hearing the appellant or his pleader if he appears on the day fixed for hearing. The appeal can be dismissed under that rule on merits without hearing the appellant or his pleader if he does not appear and argue on the day fixed for hearing. What the Court is expected to do is to fix a day for hearing and by doing that opportunity of being heard is given to the appellant. Once opportunity of being heard at the stage of admission of appeal is given to the appellant if the appellant or his pleader does not appear the appellate Court can either proceed to dismiss the appeal on merits under sub-r.(1) of R.11 or dismiss the appeal for default under sub-r.(2) of the above rule. The discretion to proceed either under sub-r.(1) or sub-r.(2) is with the Court. 8. There may be cases in which Second Appeal is dismissed at the time of admission hearing for default of the counsel not being present in Court, without going into the question whether any substantial question of law arises for consideration in Second Appeal. In such cases, under 0. 41, R.19 of the Code, the appellant may file an application for re-admission of the appeal. When a Second Appeal is dismissed after finding that there arises no substantial question of law for being considered in a Second Appeal, 0. 41, R.19 is not applicable and hence no question of re-admission of such an appeal arises. Hence this M.J.C. is dismissed.