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2014 DIGILAW 720 (GAU)

Suratun Nessa & Anr. v. State of Assam & Ors.

2014-07-17

NISHITENDU CHAUDHURY

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1. Whether the first appeal once admitted for hearing can be decided on merit in the absence of the appellants is the sole question to be answered in this second appeal. 2. The plaintiffs instituted Title Suit No. 41 of 1994 in the court of learned Munsiff Hojai, Sankardev Nagar, Hojai, stating that a plot of land measuring 2 Bighas out of 3 Bighas, 2 Kathas, 8 Lechas covered by Dag No. 15 of Paschim Dhaniram Pathar Kisam under the Hojai Sub-division has been under their possession for about last 30 years and they have been making payment of touzibahir revenue to the Government against the occupation of the said land. It is the further case of the plaintiffs that from the time of their predecessor in interest, prayers were made before the authorities for settlement of the land in their favour and such prayer was also recommended by the departmental Minister of the State. But despite such recommendations no settlement was made in their favour and ultimately, a notice was issued under rule 18(2) of the Settlement Rules framed under the Assam Land and Revenue Regulation Act, 1882. The plaintiffs initially challenged the notice invoking writ jurisdiction of this High Court vide Civil Rule 2414 of 1994, whereupon the notice under rule 18(2) was set aside. A consequent direction was also given to the Jurisdictional Deputy Commissioner to consider and dispose of the representation of the plaintiffs within a period of 2 months thereafter. But despite such order of this Court the authority did not consider the representation and under such circumstances, the plaintiffs claimed to have acquired right, title and interest over the suit land. In the suit, the plaintiffs, made a prayer for declaration of their right, title and interest over the suit land and also for confirmation of possession along with consequent prohibitory injunction restraining the defendants from interfering with peaceful possession of plaintiffs over the suit land referred to above. On receipt of summons defendants submitted a written -statement and described the plaintiffs as encroachers of the land in question. The defendants prayed that the suit be dismissed as not maintainable. The defendant No. 5, Manager, Statfed, filed a separate written statement and prayed that the suit be dismissed with cost. Upon such rival contentions of the parties, the learned trial court framed following issues: “1. Is there any cause of action for the suit? The defendants prayed that the suit be dismissed as not maintainable. The defendant No. 5, Manager, Statfed, filed a separate written statement and prayed that the suit be dismissed with cost. Upon such rival contentions of the parties, the learned trial court framed following issues: “1. Is there any cause of action for the suit? 2. Whether the suit is maintainable? 3. Whether the suit is bad for defect of parties? 4. Whether the suit is hit by section 154 of Assam Land Revenue Regulation? 5. Whether the suit is barred by principles of waiver, estoppels and acquiescence? 6. Whether the plaintiffs have right, title, interest and possession over the suit land? 7. Whether the plaintiffs are entitled to a decree as prayed for? 8. To what relief, if any the parries are entitled?” 3. The plaintiffs examined as many as 4 witnesses including themselves and exhibited 3 documents in support of their contention. The defendants did not adduce any evidence or did not examine any witness. Out of the aforesaid issues the learned trial court took up issue No. 6 for decision and held that the plaintiffs failed to show any written lease or written permission in their favour for occupying the land. The learned trial court relied on the judgment of hon’ble Supreme Court in the case of Radha Knnoo reported in 1997 (2) GLT (SC) 35 and held that payment of touzibahir revenue does not confer any right, title and interest on an unauthorised occupant unless he is settled with the land in question. With these findings learned trial court held that the plaintiffs did not have any right, title and interest over the suit land. Consequently, other issues were decided against the plaintiffs and the suit was dismissed by judgment and decree dated 2.5.2001. This judgment was brought in appeal in Title Appeal No. 27 of 2001 in the Court of learned Civil Judge (Senior Division), Nagaon. As the appeal was time bared an application for condonation of delay was filed. The prayer for condonation having been allowed, the appeal was admitted for hearing on merit by order dated 10.10.2001 and records were called for. On 6.8.2002 the appeal was fixed for final hearing on which date appellants or their counsel did not appear. The learned First Appellant Court after hearing the learned counsel for the respondents dismissed the appeal on merit. On 6.8.2002 the appeal was fixed for final hearing on which date appellants or their counsel did not appear. The learned First Appellant Court after hearing the learned counsel for the respondents dismissed the appeal on merit. It is under such circumstances the present Second Appeal has been preferred. The appeal was admitted on 14.3.2003 on the following substantial question of law which is quoted below: “Whether the learned court below erred in deciding the appeal on merit without hearing the appellants?” 4. I have heard Mr. P.K. Deka, learned counsel for the appellants and Mr. G. Sarma, learned Government Advocate, Assam/for State respondents. 5. Order XLI, rule 17(1) of the Code of Civil Procedure provides that where on the day fixed or on any other day to which hearing of an appeal is adjourned and the appellant does not appear when the appeal is called on for hearing, court may pass an order and dismiss the appeal for default. Clause (2) of the same rule provides that if appellant appears but the respondent does not appear then the Appellate Court can hear the appeal ex parte and can decide the same in absence of the respondent. The question as to whether appeal can be taken up on merit when the appellant does not appear has been answered by specific recital under Explanation to rule 17(1), of order XLI of the Code of Civil Procedure. This explanation was inserted in order XLI, rule 17(l)~~of the Code of Civil Procedure vide section 87 of the Code of Civil Procedure Amendment Act, 1976 and it came in to effect on 1.2.1977. Provisions furnished in this Explanation has cleared the ambiguity in regard to exigency where appellant is absent at the time of hearing, by providing that nothing in sub-rule (1) of rule 17 of order XLI shall be construed as empowering the court to dismiss the appeal on the merits. The language is clear and does not require any interpretation. Provision of rule 17(1) along with explanation as quoted below for ready reference. “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. “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.” 6. Upon perusal of Explanation under rule 17(1), order XLI of the Code of Civil Procedure, it becomes clear that where the appellant fails to appear on the day fixed for hearing or on any other day when the hearing is adjourned, the only recourse that can be taken by Appellate Court is to dismiss the appeal by default and in no circumstances an appeal can be decided on merit in the absence of the appellant. That being the position the sole substantial question of law needs to be answered in affirmative holding that the learned first appellate court committed error in deciding the appeal on merit without hearing the appellants. The sole substantial question of law having been decided in favour of the appellants this Second Appeal is liable to be allowed. It is accordingly allowed. Impugned appellate judgment and decree dated 7.8.2002 passed by the learned Civil Judge (Senior Division), Nagaon, in Title Appeal No. 27 of 2001 of this Court is hereby set aside. The appeal is remanded to the learned First Appellate Court, Nagaon, for decision afresh in accordance with law. 7. Sent down the records. 8. No order as to cost.