Research › Search › Judgment

Karnataka High Court · body

2016 DIGILAW 513 (KAR)

Vithal Laxman Kambale v. Deputy Commissioner

2016-07-05

A.N.VENUGOPALA GOWDA

body2016
JUDGMENT : Suit filed for passing of a decree of permanent injunction having been dismissed by the Trial Court, an appeal, under S.96 of CPC was filed by the plaintiff. The appeal having been dismissed for non-prosecution, this second appeal was filed. 2. Registry having sought clarification as to how the second appeal is maintainable, since the first appeal has been dismissed for default and an endorsement having been made on the scrutiny sheet by the learned advocate that ‘the appeal under S.100 CPC is maintainable even if R.A. is dismissed by the First Appellate Court, to see the legality of the order in R.A.’ the case is listed for orders. 3. Perused the appeal memorandum. 4. The two substantial questions of law raised in this appeal memorandum being relevant, is extracted hereinbelow: “(1) Whether the First Appellate Court was justified in dismissing the appeal for default? (2) Whether the trial court was justified in dismissing the appeal for default without appreciating the material facts of the case?” 5. The lower Appellate Court having found the appellant and his learned advocate had absented on earlier hearing dates and also on 17.09.2014, both in the morning and afternoon sessions, has dismissed the appeal for default. 6. There is no denial of the fact that the appellant and his learned advocate remained absent before the lower Appellate Court on several hearing dates and also on 17.09.2014. The appellant having not appeared and there being no representation, the appeal was dismissed for default, without going into merits. 7. Rule 17 of Order XLI CPC provides for dismissal of appeal in case of default. As per Rule 17(1), if the appellant does not appear on the adjourned date of hearing, the appeal may be dismissed. Explanation inserted by Act 104 of 1976 with effect from 01.02.1977 makes it clear that, nothing in the subRule shall be construed as empowering the Court to dismiss the appeal on the merits. But if the appellant appears and the respondent does not appear, appeal can be heard ex parte, under Rule 17(2). Order XLI Rule 19 CPC deals with readmission of appeal, ‘dismissed for default’, where the appellant does not appear at the time of hearing. But if the appellant appears and the respondent does not appear, appeal can be heard ex parte, under Rule 17(2). Order XLI Rule 19 CPC deals with readmission of appeal, ‘dismissed for default’, where the appellant does not appear at the time of hearing. If the appellant applies under Rule 19 for readmission of appeal, the Court, if satisfied, that the appellant was prevented by sufficient cause from appearing when the appeal was called on for hearing, can readmit the appeal on such terms as to costs or otherwise as it thinks fit. Instead of availing the remedy in terms of Rule 19 of Order XLI CPC i.e., showing cause which prevented the appellant from appearing on the date the appeal was called on for hearing and was dismissed for default, this appeal having been filed, the Registry has rightly sought the said clarification. 8. It is obvious that prior to the filing of this appeal, the appellant and his learned representative did not consult the Civil Procedure Code, 1908 and catena of decisions with regard to the procedure to be adopted when an appeal was dismissed for default. 9. In Ajit Kumar Singh Vs. Chiranjibi Lal, (2002) 3 SCC 609 , the appellants were defendants in an eviction suit. The suit was decreed and the first appeal was dismissed. When the second appeal filed came up for hearing, none was present on behalf of the appellant. However, the second appeal was dismissed on merit. A review petition filed having been dismissed and the case having been carried to the Apex Court, it was held as follows: “8. ….. The only course open to the High court was to dismiss the appeal for non prosecution in the absence of the advocate for the appellant. The High Court ought not to have considered the merits of the case to dismiss the second appeal. (See Rafiq Vs. Munshilal, 1981 2 SCC 788 . The same view was reiterated in Abdur Rahman Vs. Athifa Begum, (1986) 6 SCC 62). 10. The substantial questions of law raised in the appeal memorandum, extracted supra, are not substantial questions of law, in view of the settled position of law by the Apex Court, in Abdur Rehman Vs. Athifa Begum, (1996) 6 SCC 622 ; Rafiq Vs. Munshi Lal, (1981) 2 SCC 788 ; Dept. of Horticulture Vs. 10. The substantial questions of law raised in the appeal memorandum, extracted supra, are not substantial questions of law, in view of the settled position of law by the Apex Court, in Abdur Rehman Vs. Athifa Begum, (1996) 6 SCC 622 ; Rafiq Vs. Munshi Lal, (1981) 2 SCC 788 ; Dept. of Horticulture Vs. Raghuraj, (2008) 13 SCC 395 with regard to the scope of Rules 17 and 19 of Order XLI CPC. 11. With regard to scope of second appeals as also the procedure for entertaining them, as laid down in S.100 of CPC, in the case of State Bank of India & Others Vs. S.N. Goyal, (2008) 8 SCC 92 , Apex Court has held as follows: “13…. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance.” 12. At this stage, learned advocate submitted that the appellant may be permitted to withdraw the appeal and avail the remedy as provided under Rule 19 of Order XLI CPC. Submission of the learned advocate is recorded. Appeal is disposed of as withdrawn, reserving liberty to avail remedy in accordance with law.