Research › Search › Judgment

Karnataka High Court · body

2013 DIGILAW 685 (KAR)

Parvathamma v. Devamma

2013-06-14

K.L.MANJUNATH

body2013
JUDGMENT 1. The present appeal is filed by the unsuccessful plaintiff who lost the case in both the courts. However, this court has to set aside the order of the Courts below purely on technical grounds. 2. Appellant instituted a suit in OS. No.365/2007 for mandatory injunction to prevent the defendant from removing unauthorized constructions put up on B sp and also for permanent injunction. The said suit came to be dismissed by the Civil Judge (Jr.Dvn.), Shimoga. Aggrieved by the said judgment and decree passed in OS. No.365/2007, appellant filed an appeal in RA No.95/2008 before the Civil Judge (Sr. Dvn.), Shimoga. The appeal also came to be dismissed on merits by the learned Appellate Judge. 3. But unfortunately the learned Appellate Judge has disposed of the appeal on merits on her own, even the appellant as well as the respondent’s counsel did not address the arguments. Para-8 of the judgment of the learned Appellate Judge reads as under:- ‘Despite grant of sufficient opportunities the parties to the appeal failed to address arguments. I have carefully gone through the lower court records and grounds raised in this appeal.’ Accordingly, the learned Appellate Judge on her own dismissed the appeal on merits. 4. It is needless to say that if appellant’s counsel had failed to address the arguments, the Appellate Court has to follow the provisions of Order 41 Rule 17 of CPC, which reads as hereunder:- “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.” 5. But, learned Appellate Judge cannot dispose of the appeal on merits in the absence of arguments advanced by both the parties. Even if appellant’s counsel alone had addressed the arguments and respondent’s counsel failed to address arguments, relaying upon the arguments advanced by the appellant the court has power to dispose of the appeal on merits. If the appellant’s counsel has failed to address arguments, the only course open to the Appellate Court to dismiss the appeal for non-prosecution and not to dispose of the appeal on merits. If the appellant’s counsel has failed to address arguments, the only course open to the Appellate Court to dismiss the appeal for non-prosecution and not to dispose of the appeal on merits. Since provisions of Order 41 rule 17 of CPC has not been followed in this appeal, the judgment of the learned Appellate Judge has to be set aside. 6. In the result, the appeal is allowed. The judgment passed in RA No.95/2008 dated 08.02.2011 passed by the I Addl. Senior Civil Judge & CJM at Shivamogga, is hereby set aside. The matter is remanded to the I Addl. Senior Civil Judge & CJM at Shivamogga, to dispose of the appeal in RA No.95/2008 on merits and in accordance with law as also following the provisions contained in Order 41 of CPC.