Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 51 (JK)

Choor Chand v. Bishamber Dass Alias Bishan Dass

2010-02-09

A.K.Shan

body2010
1. As in this case the counsel for the petitioners has stopped appearance completely so learned counsel for the respondent has been heard at length. 2. I have also examined the record. 3. Two appeals were filed by respondent Bishan Dass before court below against orders passed in mutations No. 131 & 198 attested under sections 4 & 8 of the Ag. Ref. Act in favor of the respondents. Appeals were dismissed for absence of the appellant on 30.10.2001. Application for restoration of appeals was filed on 17.10.2003. This application was again dismissed for absence of the appellant on 10.12.2003. Another application for restoration of said application was filed on 1.1.2004. On the same day after hearing the counsel for appellant this application was allowed and respondents/ petitioners herein were directed o be served and case adjourned to 5.2.2004. Instead of deciding the application for restoration of appeal the court below decided the appeal itself on 21.10.2004. This order has been challenged now before this Tribunal on various questions of law. 4. Legally the order deciding the appeal itself is wrong. The order for restoration of application for restoration of application fro restoration of the appeal without hearing the other side is also wrong. Presuming that order dated 1.1.2004 has been passed properly the result is that at the most the 1st application for restoration of appeal could be said to have been restored. In that situation the 1st application for restoration of appeal was to be decided. But to the contrary the appellate court restored the appeal and took up the same for disposal. The procedure adopted by the appellate court patently is illegal. 5. The appellate court has not only committed this grave illegality but has landed itself in another error while disposing of the appeal. As per record of the court below after restoration of the appeal instead of the application for restoration of the same the appellant was absent on 9.6.2004 and was placed exparte and the respondent was directed to file written arguments. 6. As per record of the court below after restoration of the appeal instead of the application for restoration of the same the appellant was absent on 9.6.2004 and was placed exparte and the respondent was directed to file written arguments. 6. As per order 41 Rule 17 CPC which has been made applicable by rule 48 of the Agrarian Reforms Rules, to the appeals under Agrarian Reforms Act the appellate court was required to dismiss appeals for default of appellant and not to decide the appeals on merit as provided by explanation appended to the said rule which expressly debars the appeal court from deciding the appeal on merit in absence of the appellant or his counsel. 7. After going through the order dated 9.6.2004 passed by the appellate court it is noticed that a novel procedure has been adopted whereby the appellant has been placed ex-party. This procedure is not known to the canon of law. The appellate court also appears not to have been informed by the other side before him that ex-party proceeding can not be initiated against the appellant. 8. As per law the appellate court was required to dismiss the appeal for absence of the appellant but instead proceeded to decide the case on merit after hearing the respondent. As per explanation appended to order 41 Rule 17 CPC the appellate court in absence of the appellant had no jurisdiction to decide the appeal on merit. As the appellate court has violated the mandatory provision of law and passed an illegal order so the same is required to be set aside. 9. The appellate court has not only committed the illegality in deciding the appeal on merit in absence of the appellant but illegally took up the appeal for disposal without deciding the application for restoration of appeal which had been dismissed for absence of the appellant on 30.10.2001. 10. The corollary of the above discussion is that the impugned order is totally against the provision of law which has resulted in mis-carriage of justice which is set aside and case is remanded back to the appellate court for deciding the application for restoration of appeal dismissed on 10.12.2003 in accordance with law and then proceed to dispose of the appeal in case the restoration application is allowed. Parties through their counsel are directed to appear before the appellate court on 15.3.2010. 11. Parties through their counsel are directed to appear before the appellate court on 15.3.2010. 11. Record of the court below be sent back along with copy of this order. File of this Tribunal be consigned to record after due compilation.