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2010 DIGILAW 1937 (MAD)

D. Thillaigovindan v. K. R. Jothi

2010-04-23

P.R.SHIVAKUMAR

body2010
Judgment : Per P.R. SHIVAKUMAR,J. Of course the miscellaneous petition stands posted today for hearing. But, the learned counsel appearing on either side submit that the appeal itself can be disposed of as a question regarding the proprietary of the lower appellate Court dismissing the appeal on merit is the main point in issue involved in the second appeal. Accordingly, with the consent of the counsel appearing on either side, the second appeal itself is taken up for hearing. 2. The submissions made by Mr. T.S. Baskaran, on behalf of the appellant and Mr. R. Gopinath, on behalf of the respondent were heard. The second appeal has been admitted on the following questions to be the substantial questions of law involved in the second appeal: “1. Whether the lower appellate Court is right in dismissing the appeal on merits contrary to the mandatory provisions of Order 41 Rule 17 (1) C.P.C which enjoins the Courts to dismiss the appeal for non-prosecution if the appellant or his counsel is absent? 2. Whether the Courts below are right in rejecting the plaint when the suit was in respect of various other items and against other sharers for a general partition, while the earlier suit was only in respect of item 6 and against the third defendant alone? 3. Whether the Courts below had misread the scope of the judgment and decree of the earlier suit to reject the plaint, as the sale in favour of the plaintiff was construed to be only of the undivided share of his vendor, co-sharer Manickam?” 3. The learned counsel for the parties agree that Question No.1 shall be taken up for consideration at the first instance and in case the same is decided in favour of the appellant, the other two questions need not be gone into as Question No. 1 goes to the root of the case itself. The Question No. 1 can be resolved with reference to the admitted facts and the interpretation of statutory provisions. The pertinent question that is involved in this case is whether an Appellate Court is empowered to dismiss the appeal on merit, when the appellant remains absent and is not represented by a counsel on the day fixed for hearing of the appeal or on the date to which the hearing has been adjourned. Order 41 Rule 17 is the relevant provision which is extracted here under: “17. Order 41 Rule 17 is the relevant provision which is extracted here under: “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 the appeal on the merits) 4. The said rule empowers the appellate forum to dismiss the appeal, where the appellant does not appear when the appeal is called on for hearing on the date fixed or on any other day to which the hearing may be adjourned. Explanation to the rule says the power given to the appellate Court under Rule 17 (1) shall not be construed as empowering the appellate Court to dismiss the appeal on merit. Therefore, it is quite obvious that the appellate Court is precluded from dismissing the appeal on merit, when the appellant does not appear on the date of hearing. 5. The learned counsel for the respondent would submit that the appeal stood posted on an earlier date and on the said earlier date, arguments of the counsel for the appellant were heard by the lower appellate Court and for hearing further arguments, the appeal stood adjourned to 21. 2008 and that on 21. 2008, there was no representation for the appellant and hence, the learned lower appellate judge chose to hear the arguments of the counsel of the respondent in the absence of the appellant as well as his counsel and reserved the case for judgment. The judgment was pronounced on 21. 2008. The preamble portion of the judgment has been prepared in such a way that the appeal came up before the Mr. K. Muthukumar, Advocate for the appellant and Mr. D. Rajasekar, Advocate for the respondent on the date on which the arguments were heard and the judgment was reserved viz., 21. 2008. But, the succeeding lines would go to show that neither the appellant nor his advocate was present on the said date. K. Muthukumar, Advocate for the appellant and Mr. D. Rajasekar, Advocate for the respondent on the date on which the arguments were heard and the judgment was reserved viz., 21. 2008. But, the succeeding lines would go to show that neither the appellant nor his advocate was present on the said date. It has been observed as follows in the preamble portion itself: “the appellant being called absent and no representation and upon perusing the case records and upon considering the arguments advanced by counsel for the respondent and having stood over for consideration till this day, this Court delivered the following judgment.” 6. Paragraph 8 is also to the effect that the arguments advanced by the learned counsel for the respondent alone was heard and the point for consideration framed in the appeal was decided after perusing the records based on such argument. No where in the judgment it has been stated that the appeal was argued on any day on behalf of the appellant. It is not the case of the respondent that arguments on the side of the appellant were fully advanced and the counsel for the appellant agreed for hearing the arguments of the respondent in his absence and reserving the case for judgment. In such an event, we cannot find fault with the learned appellate Judge. On the other hand, as admitted across the bar and as also ascertained from the recitals found in the impugned judgment, it is crystal clear that the appeal was decided not based on the arguments advanced on behalf of the appellant but based on the arguments advanced on behalf of the respondent and after perusing the records. In fact, the absence of the appellant has also been noted in the judgment. Therefore, the procedure adopted by the learned lower appellate Judge in pronouncing judgment on merit is against the explanation appended to subclass (1) of Rule 17 Order 41 of Code of Civil Procedure. 7. For all the reasons stated above, this Court has got no hesitation in coming to the conclusion that the judgment pronounced on merit by the lower appellate Court deserves to be set aside on that score alone and that the appeal should be remitted back to the lower appellate Court for fresh disposal according to law. 7. For all the reasons stated above, this Court has got no hesitation in coming to the conclusion that the judgment pronounced on merit by the lower appellate Court deserves to be set aside on that score alone and that the appeal should be remitted back to the lower appellate Court for fresh disposal according to law. In view of the finding arrived at in respect of the substantial Question No.1, the consideration of other two questions becomes unnecessary. 8. The learned counsel appearing for both parties made a request that the lower appellate Court may be directed to dispose of the appeal within a time to be fixed by this Court. This Court is of the view that a period of three months from the date of receipt of a copy of this judgment shall be sufficient for the disposal of the appeal by the lower appellate Court. Accordingly, the second appeal allowed. The judgment and decree of the lower appeilate Court dated 21. 2008 made In A.S. No.82 of 2006 is set aside and A.S.No.82 of 2006 is remitted back to the lower appellate Court for fresh disposal. The appeal shall be disposed of within a period of three months from the date of receipt of records. No costs. Appeal disposed of.