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2002 DIGILAW 200 (KER)

H. Kamala v. H. Manamohini

2002-03-20

R.BHASKARAN

body2002
Judgment :- R. Bhaskaran, J. Defendants 11,12,14,15,16,18,25 and 26 in a suit for partition are the appellants in the second appeal. The suit was decreed by the trial court and in appeal filed by the present appellants, the judgment and decree was modified in favour of the appellants. In this appeal, the following substantial questions of law were framed in the memorandum of second appeal on which notice was issued. A. Is not the judgment and decree of the court below totally vitiated in so far as the court below has simply taken the appeal as heard and not applied its mind to the evidence and facts and circumstances of the case? B. Should not have the court below decided the question regarding reservation claimed by the appellants 1 to 8 before it over plaint item No. 1 instead of postponing and relegating the same to be worked at the time of passing of the final decree ? C. The admitted case being that appellants 7 and 8 herein (defendants 25 and 26, they being appellants 9 and 10 before the court below) are in exclusive possession and enjoyment of portions of plaint items 2 and covered by Exts. B7 and B8, should not have the lower appellate court allowed the appeal and excluded the said portions from portion ? 2. After hearing the counsel on both sides at length, it was felt that the substantial question of law to be framed is as follows : "Whether the appellate court was justified in law in disposing of the appeal on merits without hearing the counsel for the appellants." "After framing this question, the counsel on both sides were heard on the newly framed question of law. The learned counsel appearing for the appellants placed strong reliance on the decision on the Supreme Court in Abdur Rahman & Others V. Athifa Begum and others (1996 (6) SCC 62) where the Supreme Court has stated as follows: "The respondents' learned counsel has been confronted with the proposition that though the High Court could have dismissed the appeal in default in the absence of the appellants' counsel, it could not have adverted to the merits of the case. Here, the High Court has recorded that all the relevant aspects of the matter have been taken into account in order to hold that there was no available ground for interference with the decision of the trial court. This was an exercise against which the High Court should have been well advised not to indulge in at stage of Order 41 Rule 17 CPC. The Explanation to Order 41 Rule 17 (1) CPC says that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. The High Court having transgressed that limit, we have therefore no option but to allow the appeal, set aside the impugned judgment and order of the High Court and put the matter back to its file for fresh disposal in accordance with law." The learned counsel for the respondents submitted that the explanation to Order 41 Rule 17 only says that the appellate court shall not dismiss the appeal on merits without hearing the counsel for the appellant. In this case, it is pointed out that the appellate court modified the judgment of the trial court and allowed in part the appeal and therefore the explanation will not apply to the facts of the case. It is however to be noticed that the Supreme Court has laid down the law that the appellate court cannot go into the merits of the case in the absence of the counsel for the appellant. This being the law laid down by the Supreme Court, this court is bound to follow the same. Learned counsel for the respondents then pointed out that whatever be the position, the appeal has been allowed by the lower appellate court and it is nothing but an attempt to delay the matter and harass the respondents. It is also pointed out that it was a case where the counsel was present but he was not ready to argue the case and not a case where the counsel was absent when the case was called. "Appearance" means, appearance for conducting the case. When a pleader asks for adjournment which is refused, there is no appearance in effect. In Robinson v. Chadwick (1878 (7) Chancery Division 878), plaintiffs' counsel declined to proceed on refusal of adjournment and Fry, J. held that he could only deal with the case as if plaintiffs had not appeared at the trial. When a pleader asks for adjournment which is refused, there is no appearance in effect. In Robinson v. Chadwick (1878 (7) Chancery Division 878), plaintiffs' counsel declined to proceed on refusal of adjournment and Fry, J. held that he could only deal with the case as if plaintiffs had not appeared at the trial. Therefore, the mere fact that the counsel was present but not ready to argue the case is as good as the counsel was absent. 3. The contention of the learned counsel for the appellants is that the main question in the appeal was whether certain property assigned by defendants 11 to 18 in favour of defendants 25 and 26 for partition and that aspect having been found against them without hearing them, there is violation of Order 41 Rule 17 of the CPC. Since I am directing the appellate court to re-hear the appeal, it is unnecessary to advert to the case on merits. The learned counsel for the respondents pointed out that if the appeal was a dismissal for default the proper remedy of the appellants was to apply for re-hearing of the case and not by filing a second appeal before this Court. Inasmuch as the lower appellate court has not dismissed the case for default but entered findings on merits, that contention is also not acceptable. The learned counsel further pointed out that the only attempt of the appellants is somehow to delay the disposal of the case and the very fact that the counsel did not argue the case when the matter was called for hearing itself is indicative of that fact. He also pointed out that defendants 11 to 18 are only co-owners and when they assigned portions of co-ownership property, the other co-owners are not bound by the same and the only remedy available to them is for a claim in equity for allotment of the property at the final decree stage and the same has been already granted by the appellate court. As already observed earlier, it is for the appellate court to go into the merits of the rival contentions and it is not possible for this court to ignore the mandatory provisions contained in the Code of Civil Procedure or the law laid down by the Supreme Court in Abdur Rahman's case (1996(6) SCC 62). As already observed earlier, it is for the appellate court to go into the merits of the rival contentions and it is not possible for this court to ignore the mandatory provisions contained in the Code of Civil Procedure or the law laid down by the Supreme Court in Abdur Rahman's case (1996(6) SCC 62). Therefore, the second appeal is allowed and the judgment and decree of the lower appellate court are set aside. The case is remanded to the lower appellate court. The lower appellate court shall re-hear the appeal on merits or proceed to under Order 41 Rule 17, if the counsel refuses to argue the case. The parties have agreed to appear before the lower appellate court on 28-5-2002 and the appellate court shall dispose of the appeal as expeditiously as possible and preferably within three weeks from that date. Office is directed to send back the records forthwith.