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2016 DIGILAW 629 (CAL)

Bijoy Lakshmi Saharoy v. Maniklal Dutta

2016-08-10

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2016
JUDGMENT : Jyotirmay Bhattacharya, J. 1. While this stay application filed in connection with the First Miscellaneous Appeal was taken up for hearing, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit. We are informed by the learned counsel appearing for the parties that all papers necessary for disposal of the appeal are available on record and as such, we have decided to dispose of the appeal itself on merit on the basis of the materials available before us by dispensing with the requirement of filing paper books in this appeal. 2. Let us now consider the merit of the instant first miscellaneous appeal in the facts of the present case. 3. The appellants herein who was the defendants in a suit for eviction filed an appeal being Title Appeal No. 79 of 2008 before the learned First Appellate Court for challenging the eviction decree passed against them by the learned Trial Court. The appeal matured for hearing. Despite adjournments were granted to the appellants on two or three occasions, the appellants were not ready in participating in the hearing of the appeal on 5th March, 2014 which was peremptorily fixed for hearing of the said appeal. Even on that day, an application seeking adjournment of hearing of the said appeal was filed by the appellants before the learned First Appellate Court. The said application for adjournment was rejected by the learned First Appellate Court, as the said application was not moved by the learned advocate of the appellants. Subsequently, the appellants did not participate in the hearing of the appeal. 3. Under such circumstances, the appeal was dismissed for default. Subsequently, the appellants filed an application under Order 41 Rule 19 of the Code of Civil Procedure for readmission of the said appeal. The learned First Appellate Court after considering the past conduct of the appellants refused to readmit the said appeal for hearing. The explanation which was given by the appellants for non-appearance before the Court on the date when the said appeal was taken up for hearing, was not accepted as sufficient by the learned First Appellate Court. 4. The instant appeal is directed against the said order by which the appellants’ prayer for readmission of the said appeal was rejected by the learned First Appellate Court. 5. 4. The instant appeal is directed against the said order by which the appellants’ prayer for readmission of the said appeal was rejected by the learned First Appellate Court. 5. In this regard, we may refer to a decision of the Hon’ble Supreme Court in the case of G.P. Srivastava –vs- R.K. Raizada & Ors. reported in 2000(3)SCC page 54 wherein it was held by the Hon’ble Supreme Court that past conduct of a litigant cannot be considered while considering the application of this nature. What is required is only to consider the explanation with regard to the last day’s default for which the appeal stood dismissed for default. 6. On consideration of the application under Order 41 Rule 19 of the Code of Civil Procedure submitted by the appellants before the learned First Appellate Court, we find that the application for adjournment could not be moved by the learned advocate of the appellants due to his preoccupation in the other courts. 7. We are of the view that the learned First Appellate Court ought not to have discarded such explanation of the appellants as for conducting the hearing of the appeal, the appellants are only required to entrust a lawyer, which they did, but if the lawyer fails to appear for any unavoidable circumstances, the appellants cannot penalized. 8. The Hon’ble Supreme Court in the case of Rafiq & Anr. –vs- Munshilal & Anr. reported in AIR 1981(SC) page 1400 also held that the appellant cannot be penalized for the default of the lawyer in participating in the hearing of the appeal. It was further held therein that under such circumstances, the respondents who suffered an injury on account of such default of the advocate of the appellants, can be compensated by payment of costs to be paid by the lawyer himself from his own pocket. 9. Considering the facts and circumstances as aforesaid, we set aside the order impugned in this appeal and readmit the title appeal with a direction upon the learned First Appellate Court to dispose of the said appeal as expeditiously as possible but positively before 30th September, 2016. 10. It is made clear that no unnecessary adjournment will be given to any of the parties. 11. 10. It is made clear that no unnecessary adjournment will be given to any of the parties. 11. It is also made clear that in the event the defendants/appellants fail to deposit the entire arrear occupational charges in respect of the suit premises within three weeks from date, the execution case which is pending before the learned execution court will proceed on in accordance with law, notwithstanding pending of this appeal. 12. Let the affidavit-of-service filed in Court today, be kept with the record. 13. Both the appeal and the application are thus, disposed of. 14. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.