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2005 DIGILAW 97 (PNJ)

Sohan Lal v. Hari Ram

2005-01-19

AJAY K.MITTAL

body2005
Judgment Ajay Kumar Mittal, J. 1. The controversy involved in the present Regular Second Appeal is whether in the absence of the defendant-appellant or his counsel on the date of arguments, could the Appellate Court dismiss the appeal on merits. 2. This is defendants appeal arising from a suit for declaration and in the alternative for possession filed by the plaintiff-respondent. The learned trial Court vide judgment and decree dated 30.1.1987 decreed the suit of the plaintiff-respondent. The defendant-appellant questioned the said judgment and decree and preferred an appeal before the learned District Judge, Narnaul. The appeal was admitted for hearing on 16.10.1987. The case was fixed on 5.6.1990 for arguments when neither the appellant-defendant nor his counsel appeared and the lower Appellate Court dismissed the appeal of the defendant-appellant on merits. The defendant-appellant has assailed the judgment and decree dated 5.6.1990 in this Regular Second Appeal. 3. Shri Sanjay Mittal, learned counsel for the appellant submitted that the judgment and decree of the learned 1st Appellate Court dated 5.6.1990 dismissing the appeal on merits cannot be sustained in law as according to him, under Order XLI Rule 17(1) of the Code of Civil Procedure, the 1st Appellate Court had no jurisdiction to dismiss the appeal on merits on non-appearance of the appellant or his counsel. According to the learned counsel, the Appellate Court could have dismissed the appeal in default. He relied upon the cases reported in Abdur Rahman and Ors. v. Athifa Begum and Ors., (1996)6 Supreme Court Cases 62 and Oriental Sales v. Bank of India, 1999(1) R.C.R. (Civil) 677, in support of his submissions. Order XLI Rule 17(1) of the Code of Civil Procedure reads as under. - (1) 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. Explanation - Nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits." A bare reading of the above rule clearly shows that where the appellant is absent when the appeal is called for hearing, the Appellate Court can adjourn the appeal or dismiss the same in default but has no jurisdiction to dismiss the same on merits. This has been incorporated as the appellant gets an opportunity to explain his absence or that of his counsel that the same was for sufficient cause and, therefore, the dismissal of the appeal in default could be recalled. The explanation to the aforesaid sub-rule leaves no manner of doubt for the interpretation as placed above. The Hon ble Supreme Court while interpreting the aforesaid provision in Abdur Rehmans case (supra) has held as under:- "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 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 the stage or (sic of) Order 41 Rule 17 C.P.C. The Explanation to Order 41 Rule 17(1) C.P.C. 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 Single Bench of this Court in M/s Oriental Sales case (supra), following the dictum of the Apex Court had held that the Appellate Court should not decide the appeal on merits in the absence of the appellant or his counsel. In view of the above, the judgment and decree dated 5.6.1990 passed by the learned Appellate Court cannot be legally sustained. 4 Consequently, this appeal is allowed. The judgment and decree dated 5.6.1990 passed by the learned Appellate Court are set aside and the matter is remanded back to the Court of learned District Judge, Narnaul to decide the same afresh, in accordance with law. 5. Since the matter is old relating to a suit filed in 1980, therefore, the Appellate Court shall dispose of the appeal on or before 31.7.2005. No costs. 5. Since the matter is old relating to a suit filed in 1980, therefore, the Appellate Court shall dispose of the appeal on or before 31.7.2005. No costs. Parties through their counsel are directed to appear before the learned Appellate Court, Narnaul on 10.3.2005.