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2009 DIGILAW 702 (JK)

Sabha v. Ab. Karim

2009-12-31

A.K.Shan

body2009
1. In this revision petition order passed by Collector with powers of Commissioner Agrarian Reforms Kishtwar has been challenged, according to which appeal filed before him by the appellant was disposed of on merit when appellant was absent. 2. According to record available with this Tribunal mutation under Sections 4 and 8 of the Agrarian Reforms Act were attested by Tehsildar Agrarian Dishware on 7.11.1986 and 8.5.1987 respectively in respect of land described in the impugned order. The petitioner preferred an appeal against the said mutations before Collector referred here-in-above on 3.11.2006. When the appeal was taken up for hearing by Collector on 28.9.2009 the petitioner-as well as her counsel was absent. The counsel for the respondent was however present. Instead of dismissing the appeal for want of presence of appellant and her counsel the Collector examined the mutation orders and dismissed the appeal on merit. 3. Aggrieved by the order of Collector the petitioner has preferred revision before this Tribunal with the request to set aside the same mainly on the ground that the same has been passed in violation of Order 41 of CPC, according to which instead of deciding the appeal on merit the same was required to be dismissed. 4. I have heard the learned counsel for the parties and examined the record minutely. 5. I find considerable weight in the present revision petition for the following reasons:- 6. By Rule 41 of the Agrarian Reforms Rules 1977 (here-in-after the Rules) provision of CPC relating to appeals from original decrees have been made applicable mutatis mutandis to all the appeal under the Agrarian Reforms Act. 7. The relevant provision for appeals from original decree is contained in Order 41 CPC. According to Rule 17 of Order 41 where on the date fixed the appellant does not appear when the appeal is called, the court may make an order that the appeal be dismissed. According to explanation suffixed to this Rule court has no power to dispose of the appeal on merits. 8. The said Rule is squarely attracted and applicable to the case in hands. The Rule gives discretion to the appellate court to wait for the appellant or to dismiss the appeal for default of his appearance. The appellate court could have waited for appearance of the appellant or her counsel. 8. The said Rule is squarely attracted and applicable to the case in hands. The Rule gives discretion to the appellate court to wait for the appellant or to dismiss the appeal for default of his appearance. The appellate court could have waited for appearance of the appellant or her counsel. But once the appellate court decided not to wait for them then the only course open was to dismiss the appeal as contemplated by O 41 R 17 of C P C. 9. In the present case admittedly the appellant and her counsel were not present before the appellate court. Accordingly the appellate court recorded their absence but adopted the procedure not recognized by law referred herein above and dismissed the appeal after taking into consideration the merit of the case, which is repugnant to the explanation appended to Rule 17 Order 41 CPC. By adopting this course the appellate court has violated the mandate of law and passed an illegal order, which is not sustainable in the eyes of law. 10. Accordingly the impugned order is set aside and case is remanded to the appellate court with direction to pass fresh order after hearing both the parties and in case they failed to appear then to adopt the procedure discussed herein above. The parties through their counsel are directed to appear before the appellate court on 17.2.2010. 11. Record of the court below along with copy of this order be sent back and file of this Tribunal be consigned to record after due compilation.