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2005 DIGILAW 75 (CAL)

SUDHANGSHU DAS v. TAPAN KUMAR ADHIKARY

2005-02-04

JYOTIRMAY BHATTACHARYA

body2005
Jyotirmay Bhattacharya ( 1 ) THIS second appeal is directed against the judgment and decree dated 30th October, 2003 passed by the learned Additional District Judge, Hooghly in Title Appeal No. 174 of 2001 affirming the judgement and decree dated 22nd June, 2001 passed by the learned Civil Judge (Junior Division), 1" Court, hooghly Sadar in Title Suit No. 224 of 1996. ( 2 ) THE defendant in a suit for eviction under the Transfer of Property act is the appellant in this appeal. ( 3 ) THE plaintiffs/respondents filed a suit for eviction on termination of relationship of landlord and tenant between the parties after service of notice under section 106 of the Transfer of Property Act upon the defendant. ( 4 ) THE said suit was decreed on contest by the learned Trial Judge on 22nd June, 2001 whereby the defendant was directed to deliver khas possession of the suit property to the plaintiffs within three months from the date of the decree, failing which the plaintiffs were given liberty to put the decree into execution. A decree for recovery of arrears of rent of Rs. 1300/-was also passed by the learned Trial Judge in the said suit. ( 5 ) CHALLENGING such decree, the defendant/appellant preferred an appeal being Title Appeal No. 174 of 2001 before the learned Additional District judge, Hooghly. On the date when the said appeal was fixed for hearing, i. e. , on 30th October 2003, the defendant/appellant without taking any effective steps for participating in the said appeal made an oral prayer for an adjournment. Such prayer for adjournment was refused by the learned Court below vide Order No. 19 dated 30th October, 2003. Even thereafter, the appellant did not participate in the hearing of the said appeal. However, it appears from the judgement and decree of the learned Court below that the appellate Court even in the absence of the appellant proceeded with the hearing of the said appeal on merit and ultimately dismissed the said appeal ex parte after hearing the learned Advocate of the respondents of the said appeal. ( 6 ) THIS second appeal is directed against the said decree of the First appellate Court. ( 7 ) IT appears from the record that at the time of admission of the said appeal, the following substantial question of law was formulated by this court :"1. ( 6 ) THIS second appeal is directed against the said decree of the First appellate Court. ( 7 ) IT appears from the record that at the time of admission of the said appeal, the following substantial question of law was formulated by this court :"1. Whether in the absence of the appellant, the appeal could be dismissed on merit in view of the Explanation to sub-rule (1) of Rule 17 of order 41 of the Code of Civil Procedure. " ( 8 ) THE learned Advocates of the respective parties made their respective submissions on the substantial question of law as indicated above. ( 9 ) MR. Roy Chowdhury, learned senior Advocate, appearing on behalf of the defendant/appellant, drawing my attention to the Explanation added to order 41 Rule 17 of the Code of Civil Procedure, submits that the learned court below ought not to have considered the merit of the said appeal in the absence of the appellant. ( 10 ) THE learned Advocate, appearing for the respondents very fairly concedes to the said submission of Mr. Roy Chowdhury. ( 11 ) AFTER hearing the learned Advocates of the respective parties and after considering the materials on record including the judgement and decree appealed against, it appears that the learned Appellate Court, in fact, considered the merit of the appeal even in the absence of the appellant and dismissed the same ex parts after hearing the learned Advocate for the respondents only. ( 12 ) IN my view, the Order 41 Rule 17 of the Code of Civil Procedure does not authorise the Appeal Court to consider the merit of the appeal in the absence of the appellant. The only course which was thus left open to the appeal Court was to dismiss the appeal for default of appearance of the appellant. ( 13 ) IN such view of the matter and by following the ratio of the decision in the case of Ajit Kumar Singh and Ors. vs. Chiranjibi Lal and Ors. , reported in 2002 (2) SCC 49 (SC), I hold that the judgement and decree appealed against, is not sustainable in law. Accordingly, the judgement and decree of the first Appellate Court is set aside. ( 14 ) HOWEVER, for the ends of justice, I give another opportunity to the appellant to press his said appeal before the Court below. , reported in 2002 (2) SCC 49 (SC), I hold that the judgement and decree appealed against, is not sustainable in law. Accordingly, the judgement and decree of the first Appellate Court is set aside. ( 14 ) HOWEVER, for the ends of justice, I give another opportunity to the appellant to press his said appeal before the Court below. Accordingly, I direct the learned First Appellate Court to hear out the said appeal on merit positively within a period of two months from date. I, however, make it clear that in the event, the appellant does not appear on the next date to be fixed by the Court below for hearing of the said appeal, then the Appeal court is free to proceed in the manner, as prescribed under Order 41 Rule 17 of the Code of Civil Procedure. ( 15 ) THE appeal is, thus, allowed. There will be, however no order as to costs. ( 16 ) IN view of the peculiar facts and circumstances of the case, drawing up the decree of this appeal, is dispensed with. Appeal allowed with direction.