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2014 DIGILAW 2948 (ALL)

Hari Baboo v. Suresh Baboo

2014-09-22

DINESH GUPTA

body2014
JUDGMENT Dinesh Gupta,J. This second appeal is preferred against the judgment dated 9.9.1998 passed by Civil Judge (S.D.), Agra in Civil Appeal no.50 of 1982 arising out of judgment dated 22.1.1982 passed by 17th, Munsif, Agra in O.S. no.14 of 1980. 2. The brief facts which give rise to this appeal are that : 3. The plaintiff appellant, hereinafter called ''the appellant' filed an original suit against the defendant-respondent, hereinafter called ''the respondent' for the relief of permanent prohibitory injunction. 4. The suit was contested by the respondent and ultimately the suit was dismissed by the Munisif vide its judgment dated 22.1.1982 against which the appellant preferred civil appeal no.50 of 1982 which was transferred to the Court of Civil Judge (S.D.) who dismissed the appeal for non prosecution vide its order dated 9.9.1998. 5. Feeling aggrieved, the appellant preferred this second appeal before this Court. 6. The court requisitioned the lower court record. Counsel for the respondent also put in appearance. 7. At the time of admission both the parties agreed that the appeal be decided finally. 8. Heard learned counsel for the parties. 9. The counsel for the appellant submitted that the judgment and decree dated 9.9.98 and 22.1.1982 passed by both the courts below are arbitrary, illegal and against the provisions of law. 10. The appellate court committed a manifest error of law in dismissing the appeal for non prosecution. 11. The appellant was represented through counsel and put in appearance on the date of hearing i.e. 9.9.98. 12. The lower appellate court committed a manifest error of law in not disposing the appeal on merit merely on the ground that appeal was pending for last 16 years and there was no occasion to adjourn the hearing of appeal. 13. It is settled law that when the appellant fails to appear on the date fixed for hearing the appellate court may dismiss the appeal in default of the appellant. 14. In the present case notices have been issued to the respondent and the parties were present on 9.9.1998 and as such there was no occasion for the appellate court to dismiss the appeal for non prosecution merely on the ground of its being old appeal. 15. 14. In the present case notices have been issued to the respondent and the parties were present on 9.9.1998 and as such there was no occasion for the appellate court to dismiss the appeal for non prosecution merely on the ground of its being old appeal. 15. The lower appellate court while dismissing the appeal for non prosecution committed manifest error of law apparent from the record by ignoring that during pendency of appeal subsequent event took place compelling the appellant to move an amendment application in the grounds of appeal which was allowed on 6.5.1998. The appellant could not be held responsible for the pendency of the appeal. 16. After allowing the amendment in the plaint the additional issues were framed in the appeal and 19.5.1998 was fixed for evidence on newly framed issues by the appellate court and again the case was fixed for evidence on 9.7.98 on the newly framed issues. 17. Then various dates for evidence were fixed by the appellate court. In the mean time the appellant also moved an application for temporary injunction against the respondent which was earlier pending on the fateful day i.e. on 8.9.1998. The appellate court fixed 9.9.1998 for final disposal of appeal. Although the appellant's application for giving him opportunity for producing evidence as well as injunction application were pending, no specific order was made on 8.9.1998 for evidence and as such the order passed by appellate court directing the appellant to adduce evidence was not possible as witness of the appellant were not present in the court on 9.9.1998. In the aforesaid circumstances, the request on behalf of the appellant to adjourn the case was bona fide. The counsel further submitted that the dismissal of the appeal for non prosecution causes serious loss and injury to the appellant and is against the principle of natural justice and as such the dismissal of appeal for non prosecution requires reconsideration and scrutiny and appeal be heard on merit by the first appellate court. 18. The counsel for the appellant also drew my attention towards the order passed on the order sheet dated 8.9.98 and 9.9.98. 19. 18. The counsel for the appellant also drew my attention towards the order passed on the order sheet dated 8.9.98 and 9.9.98. 19. The counsel for the respondent submitted that the appellant was trying to delay the disposal of appeal by one way or the other First of all he filed an amendment application in the plaint and then on the basis of the said amendment he tried to raise certain new issues. After allowing amendment the court framed additional issues. Although those issues does not require any fresh evidence but the appellant insisted for time to produce evidence. Ample opportunity was given to the appellant to adduce his evidence. Instead of producing the evidence the appellant moved an injunction application and also pressed the court to pass order on the injunction application first before adducing its evidence. 20. On the fateful day the appellant further insisted that his injunction application should be disposed of at once and then appeal be adjourned for adducing the evidence. Upon asking by the appellate court to argue the appeal the appellant insisted that his injunction application should be disposed of first that showed that the appellant was not interested in deciding appeal and he failed to make arguments on merits on his appeal and the Court was left with no option but to dismiss the appeal for non prosecution. 21. The counsel further submitted that the court has wide discretion to dismiss the appeal for non prosecution and the discretion can not be challenged by way of second appeal. 22. In case the appellant was not satisfied with the order of dismissal of appeal for non prosecution he should have applied for readmision of the appeal under Order 41 Rule 19 of C.P.C. Instead of filing the application for readmission of the appeal the appellant mala fidely filed this second appeal. Since the appellate court has jurisdiction and discretion to dismiss the appeal for non prosecution no substantial question of law involve in this appeal and the appeal is liable to be dismissed. 23. I am unable to accept the contention raised by learned counsel for the respondent. 24. In order to appreciate the argument raised by the learned counsel for the appellant, it is necessary to go through the order sheet of the first appellate court. 25. 23. I am unable to accept the contention raised by learned counsel for the respondent. 24. In order to appreciate the argument raised by the learned counsel for the appellant, it is necessary to go through the order sheet of the first appellate court. 25. No doubt the appeal was filed in the year 1982 and on the date of dismissal it was 16 years old. However, the same could not be a ground for dismissal of appeal. 26. It is also not disputed that the appeal was repeatedly adjourned on the applications moved by rival parties. The appeal was also dismissed in default and thereafter restored to its original number. The adjournment and the dismissal also consumed considerable time. An application was moved by the appellant for amendment of the plaint which was allowed. 27. After that one additional issue was framed regarding the constructions raised by the respondent during the pendency of the suit. Then again two additional issues were also framed regarding the entitlement of the appellant to get the relief of mandatory injunction and regarding the relief of damages for use and occupation of illegal constructions. Then again an application 144 A was moved for amendment in the memo of appeal, that was also allowed. Then upon transfer application moved by the appellant before the learned District Judge, the appeal was transferred to the court of Civil Judge (S.D.) vide order dated 24.8.1998. On 24.8.1998 the appeal was received in this court and the court fixed 31.8.1998 and on 31.8.1998, 8.9.1998 was fixed with a direction to the office to inform the respondent's counsel. On 8.9.1998 the court observed that in view of the order passed by the High Court in writ petition the hearing of the appeal could not be adjourned and then listed this appeal for hearing on 9.9.1998. 28. On this date when the appeal was called out both the parties were present and they were directed to bring their lawyers again. When the appeal was called out, an application 188 C was filed by the appellant for permission to adduce evidence and also requested for disposal of his application for injunction dated 27.4.1998. 28. On this date when the appeal was called out both the parties were present and they were directed to bring their lawyers again. When the appeal was called out, an application 188 C was filed by the appellant for permission to adduce evidence and also requested for disposal of his application for injunction dated 27.4.1998. The court directed that since the appeal is fixed for final hearing and in case the appellant wants to adduce evidence in the light of order dated 23.3.1998, then he is permitted to adduce his evidence and the application dated 27.4.1998 shall be considered later on and appellant was directed to adduce his evidence. 29. Again when the case was called out and the counsel for the parties were present, the court passed the impugned order that the counsel for the appellant is not prepared to argue the appeal and is continuously pressing to adjourn the appeal till Monday and also insisting the disposal of his interim injunction application still the conduct of the appellant shows that he is not interested in getting his appeal decided but just to linger on appeal. The appellant's request is based on on wrong facts and the court further finds that since the appeal is 16 years old and there is no proper reason to adjourn the case and the appellant is neither adducing his evidence nor forwarding the arguments, hence the appeal dismissed for non prosecution. 30. The appellant aggrieved with the order of dismissal of his appeal for non prosecution filed this appeal. 31. From the order sheet it is clear that on one hand the court directed the appellant to produce evidence on the other hand insisted the appellant to advance argument on the merit of the appeal even on the date of passing of the impugned order first the court fixed the date for evidence and asked the appellant to adduce the evidence on the additional issue framed during the appeal. Once the case was listed for adducing the evidence at the most the court could close the opportunity of the appellant to adduce evidence on that date but the court could not simultaneously ask the appellant to argue the appeal without closing the opportunity of the appellant to adduce the evidence. 32. It appears that the court was very much influenced with the fact that the appeal was quite old. 32. It appears that the court was very much influenced with the fact that the appeal was quite old. No doubt there was some pressure on the appellate court to dispose of the old pending appeals but mere pendency of appeal for a longer period is no ground to dismiss the appeal for non prosecution. There is consisting view of Apex Court as well as of this court that the cases should be decided on merits and should not be dismissed on default on technical grounds. Natural principle of law also emphasised that one should not be condemned unheard and the court should make efforts to decide the cases on merit. 33. However, in the present case the court was not at all justified in dismissing the appeal for non prosecution. Form the order it is transpired that the counsel was only insisting that the case be adjourned till Monday. Once the court has fixed a date for adducing the evidence the court should not dismiss the appeal without first closing the evidence of the parties. At the most on the fateful day the Court could close the opportunities of the appellant to give evidence and then could fix next date for hearing the appeal on merits. Thus the order passed by the courts below was not at all justified and it has to be set aside. 34. Since the appellate court has not decided the appeal on merit the court has left no option but to remand the case for decision on merit. After giving sufficient opportunity to the appellant to adduce evidence and to advance arguments on the appeal on merits since the matter is quite old the appellate court is directed to decide the appeal expeditiously. Since the court is remanding the case no necessity to pass any observation on the merit of the case. 35. In view of the above discussion the appeal is allowed and the impugned order dated 9.9.1998 is set aside and the matter is remanded back to the first appellate court to decide the appeal on merit after taking the evidence of the parties, if any. 36. The appellate court is also directed to decide the appeal on merit as expeditiously as possible preferably within a period of six months.