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2005 DIGILAW 115 (ORI)

Gandharba Pal v. Bulei Sethi

2005-02-07

A.K.PATNAIK

body2005
JUDGMENT A. K. PATNAIK, J. — This is an appeal under Section 100 of the Code of Civil Procedure, 1908 (for short C.P.C.). 2. The facts for disposal of this appeal briefly are that the appellant herein filed T.S. No.124 of 1988 in the Court of the Civil Judge, (Senior Division), Jagatsinghpur for a declara¬tion that the bricks which were the subject matter of the suit belong to the appellant. The respondents filed written statement in the suit and controverted the allegations made in the plaint. By judgment and decree dated 17.1.1995, the learned Civil Judge, (Senior Division), Jagatsinghpur, dismissed the suit. Aggrieved, the appellant filed Title Appeal No.74 of 1995 in the Court of the learned Addl. District Judge, Jagatsinghpur. The said appeal was posted to 10.11.1998 for hearing when the learned Addl. District Judge, Jagatsinghpur passed the following orders : “ 10.11.98 Counsel for both sides have not taken steps today. This is an appeal of the year 1995. Hence the case is to be disposed of on merit. Put up on 14.12.98 for judgment.” Thereafter on 14.12.1998, the learned Addl. District Judge, Jagatsinghpur delivered the judgment and dismissed the appeal. Aggrieved by the said judgment and decree dated 14.12.1998 the appellant has filed this second appeal. 3. On 21.12.2004, this Court while issuing notice to the respondent formulated the following substantial question of law which arises for decision in this case. “On 10.11.1998 when counsel for both sides had not taken any step, whether it was open for the lower appellate Court to re¬serve the appeal for judgment or dismiss the same for default.” 4. In response to the notice the respondents have appeared through their counsel and have been heard on the aforesaid sub¬stantial question of law. 5. Mr. B. Patnaik, learned counsel for the appellant submitted that Order 41, Rule 17 (1) of the C.P.C. makes it clear 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 for hearing, the Court may make an order that the appeal be dismissed. He further submitted that the Explana¬tion to Order 41, Rule 17(1) inserted by Act 104 of 1976 with effect from 1.2.1977 made it clear that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. He further submitted that the Explana¬tion to Order 41, Rule 17(1) inserted by Act 104 of 1976 with effect from 1.2.1977 made it clear that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. Mr Patnaik submitted that in view of the said clear provision in the Explanation to Order 41, Rule 17 (1) of the C.P.C., the learned Addl. District Judge, Jagatsinghpur should have dismissed the appeal of the appellant for default when neither the counsel for appellant nor the counsel for respondents took steps or appeared for hearing of the appeal on 10.11.1998, but instead of dismissing the appeal for default has proceeded to deliver the judgment on 14.12.1998 on merits. In support of his aforesaid submissions Mr. Patnaik relied on the decisions of this Court in Goura Charan Das v. Bhagirathi Srichandan and others, AIR 1991 Orissa 326 and Chandrakala Domb v. Master Domb and others, 2002 (I) OLR 136 . 6. Mr. S. C. Mohanty, learned counsel for the respondents 1, 2, 3, 4 and 5, on the other hand, submitted that it will be clear from the impugned judgment and decree dated 14.12.1998 of the learned Addl. District Judge, Jagatsinghpur in T.A. No.74 of 1995 and, in particular, paragraphs 6 and 7 that the learned Addl. District Judge, Jagatsinghpur has heard the learned counsel for the appellant and learned counsel for the respondents and has thereafter proceeded to deliver the judgment on merits. He sub¬mitted that the provisions of Order 41, Rule 17 (1) of the C.P.C., therefore, do not apply because this is a case where the appellant had appeared and was heard through his counsel. Mr.Mohanty further submitted that Order 41, Rule 24 provides that where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the appellate Court proceeds. He submitted that this provision in Order 41, Rule 24 enables the appellate Court to pronounce the impugned judgment on merits. 7. I am unable to accept the aforesaid submissions of Mr. Mohanty. Order 41, Rule 24 on which Mr. Mohanty has placed reli¬ance is quoted herein below : “24. He submitted that this provision in Order 41, Rule 24 enables the appellate Court to pronounce the impugned judgment on merits. 7. I am unable to accept the aforesaid submissions of Mr. Mohanty. Order 41, Rule 24 on which Mr. Mohanty has placed reli¬ance is quoted herein below : “24. Where evidence on record sufficient Appellate Court may determine case finally.- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if neces¬sary, finally determine the suit, notwithstanding that the judg¬ment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” 8. A plain reading of the language of the said provision of Order 41, Rule 24 of the C.P.C. will show that the said provi¬sion applies where the appellate Court resettles the issues in a case where the appellate Court finds that issues were not properly settled and the said provision provides that where the appellate Court after resettling the issues find that the evidence upon the record is sufficient to enable the appel¬late Court to pronounce judgment, after resettling the issues, the appellate Court may finally determine the suit, notwithstand¬ing that the judgment of the trial Court has proceeded wholly upon some ground other than that on which the appellate Court proceeds. This provision, therefore, does not deal with the case when the appellant or his counsel does not appear when the appeal is called for hearing before the appellate Court. 9. The provision which applies to a case where the appel¬lant or his counsel does not appear when the case is called for hearing by the appellate Court is the provision in Order 41, Rule 17(1). The said provision in Order 41, Rule 17(1) of the CPC together with the Explanation thereto is quoted herein below :- “17. Dismissal of appeal for appellant’s default.- (1) 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. Explanation.- Nothing in this sub-rule shall be construed as empowering the Court to dismiss on the merits.” 10. Explanation.- Nothing in this sub-rule shall be construed as empowering the Court to dismiss on the merits.” 10. The language in the aforesaid provision in Sub-rule (1) of Rule 17 of Order 41 of the C.P.C. is plain and clear that when the appellant does not appear when the appeal is called for hear¬ing, the Court may make an order that the appeal be dismissed. The explanation appended to the aforesaid provision in Order 41, Rule 17(1) of the C.P.C. has further clarified that where the appellant does not appear when the appeal is called for hearing, the Court may dismiss the appeal not the merits but for default. 11. In Abdur Rahman and Others v. Athifa Begum and Others 1996 (6) Scale 505 = (1996)6 SCC 62 , the High Court dismissed the appeal after holding that all relevant aspects of the matter have been taken into consideration and there was no available ground for interference with the decision of the trial Court. The Su¬preme Court held that this was an exercise which the High Court should have been well advised not to indulge in at the stage of Order 41, Rule 17 CPC when the explanation to Order 41, Rule 17(1) CPC says that nothing in the sub-rule shall be construed as empowering the Court to dismiss the appeal on merits. The aforesaid decision of the Supreme Court in Abdur Rahman and others v. Athifa Begum and others has been relied on by the learned Single Judge of this Court in Chandrakala Domb v. Master Domb and others (supra) cited by Mr. Patnaik. 12. Bearing in mind the aforesaid law laid down by the Apex Court as well as followed by this Court, I may now examine the facts of the case. It appears from the order sheet of the first appellate Court that on 10.11.1998 counsel for both sides did not take any steps. This being an appeal of the year 1995, it was ordered that the case was to be disposed of on merits and it was directed that the matter be put up on 14.12.1998 for judgment. There is no mention whatsoever in the order dated 10.11.1998 of the first appellate Court quoted above that after the said order was passed by the first appellate Court the hearing took place in which the counsel for the appellant or counsel for the respond¬ents participated. There is no mention whatsoever in the order dated 10.11.1998 of the first appellate Court quoted above that after the said order was passed by the first appellate Court the hearing took place in which the counsel for the appellant or counsel for the respond¬ents participated. The said order-sheet also indicates that after 10.11.1998, on 14.12.1998 the judgment was pronounced by the first appellate Court and no date intervened between 10.11.1998 and 14.12.1998 on which the learned counsel for the appellant and the learned counsel for the respondents were heard. Hence, the mention in the impugned judgment by the first appellate Court that submissions were made by the learned counsel for the appel¬lant and learned counsel for the respondents seems to be an error of record and it is difficult to accept the submission of Mr. Mohanty, learned counsel for the respondents on the basis of whatsoever has been mentioned in paragraphs 6 and 7 of the im¬pugned judgment that the learned counsel for the appellant or learned counsel for the respondents were actually heard by the first appellate Court before the judgment was pronounced. In the absence of any such hearing on the merits of the appeal, the only option left for the first appellate Court was to dismiss the appeal for default and not to deliver the judgment on merits as has been provided in Order 41, Rule 17(1) of the CPC read with the Explanation thereto and as has been clarified in the decisions of the Supreme Court and this Court discussed above. 13. In the case of Abdur Rahman and others v. Athifa Begum and others (supra), the Supreme Court after setting aside the impugned judgment and order of the High Court remitted the matter back for fresh disposal in accordance with law. In Goura Charan Das v. Bhagirathi Srichandan and others and Chandrakala Domb v. Master Domb and others (supra) cited by Mr. Patnaik, the learned Single Judge of this Court while setting aside the impugned judg¬ment and order of the first appellate Court has similarly remand¬ed the appeal back to the first appellate Court for fresh adjudication in accordance with law. 14. Accordingly, I set aside the impugned judgment and decree dated 14.12.1998 of the learned Addl. District Judge, Jagatsinghpur in T.A. No.74 of 1995 and remit the matter back to the Court of the learned Addl. 14. Accordingly, I set aside the impugned judgment and decree dated 14.12.1998 of the learned Addl. District Judge, Jagatsinghpur in T.A. No.74 of 1995 and remit the matter back to the Court of the learned Addl. District Judge, Jagatsinghpur for fresh disposal of the said Title Appeal in accordance with law. 15. Considering the aforesaid facts and circumstances of the case, parties shall bear their own costs. The appellant and the respondents will appear before the learned Addl. District Judge, Jagatsinghpur on 14th March, 2005 on which day the learned Addl. District Judge, Jagatsinghpur will either hear the appeal or fix up another date for hearing and thereafter dispose of the appeal within a period of three months from 14.3.2005. The L.C.R. be sent back immediately. Appeal disposed of.