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2017 DIGILAW 120 (ORI)

Sudhansu Sekhar Tripathy v. State of Orissa

2017-01-27

A.K.RATH

body2017
JUDGMENT : Dr. A.K. Rath, J. The plaintiff is the appellant against a reversing judgment. 2. Since the appeal is to be disposed of on a short point, the facts need not be stated in detail. Suffice it to say that the plaintiff instituted T.S. No. 18 of 1991 in the court of the learned Additional Munsif, Berhampur for permanent injunction impleading the respondents as defendants. The suit was decreed. Against the judgment and decree passed by the learned trial court, the defendant no.1 (respondent no.1 herein) filed Title Appeal No.10 of 1993 in the court of the learned District Judge, Berhampur, which was subsequently transferred to the court of the learned A.D.J., Berhampur and renumbered as T.A.No.10/93(T.A.11/92-GDC). On the date of hearing, the learned counsel for the appellant was not present, but then the learned appellate court decided the matter on merit and set aside the judgment and decree passed by the learned trial court. 3. This appeal was admitted on 11.3.1996 on the following substantial questions of law. They are:- “(i) Whether the appellate court has interpreted the provisions of Order 41, Rule 17 C.P.C., correctly an whether there was justification to allow the appeal in absence of the appellant: (ii) Whether assessment of holding tax by the Municipality amounts to concession of title in favour of the plaintiff ; (iii) Whether respondent no.2 who was the respondent no.2 in Title Appeal could have canvassed the contentions on behalf of the State of Orissa the appellant no.1 in the Title Appeal; (iv) Whether non-compliance of recruitment under Section 80 of the Civil Procedure Code and Section 349 of the Orissa Municipal Act make the plaintiff unsuited”. 4. Heard Mr. S.P. Mohanty, learned counsel for the appellant and Ms. S. Mishra, learned Additional Standing Counsel for the State-respondent no.1. None appeared for respondent no.2. 5. Mr. Mohanty, learned counsel for the appellant submitted that since the learned counsel for the appellant was absent when the appeal was posted for hearing, the learned appellate court committed a manifest illegality and impropriety in deciding the appeal on merit. He further submitted that when an appeal is posted for hearing, the counsel for the appellant does not appear, the appellate court has to dismiss the appeal. The appellate court has no jurisdiction to decide the appeal on merit. 6. He further submitted that when an appeal is posted for hearing, the counsel for the appellant does not appear, the appellate court has to dismiss the appeal. The appellate court has no jurisdiction to decide the appeal on merit. 6. Order 41 Rule 17 C.P.C. provides : “(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 this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. (2) Hearing appeal ex parte. — Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.” 7. The apex Court had the occasion to interpret the said provision in the case of Abdur Rahman Vrs. Athifa Begum, (1996) 6 SCC 62 . Taking a cue from Abdur Rahman (supra), the apex Court in the case of Harbans Pershad Jaiswal (Dead) by legal representatives Vrs. Urmila Devi Jaiswal (Dead) by legal representatives, (2014) 5 SCC 723 held thus:- “11. It is clear from the above that whereas appeal can be heard on merits if the respondent does not appear, in case the appellant fails to appear, it is to be dismissed in default. The Explanation makes it clear that the court is not empowered to dismiss the appeal on the merits of the case. As different consequences are provided, in case the appellant does not appear, in contradistinction to a situation where the respondent fails to appear, as a fortiori, Rule 19 and Rule 21 are also differently worded. Rule 19 deals with readmission of appeal “dismissed for default”, where the appellant does not appear at the time of hearing, Rule 21 talks of “rehearing of the appeal” when the matter is heard in the absence of the respondent and ex parte decree made. In Abdur Rahman case, this Court made it clear that because of non-appearance of the appellants before the High Court, the High Court could not have gone into the merits of the case in view of specific course of action that could be chartered (viz. In Abdur Rahman case, this Court made it clear that because of non-appearance of the appellants before the High Court, the High Court could not have gone into the merits of the case in view of specific course of action that could be chartered (viz. dismissal of the appeal in default above) continued in the Explanation to Order 41 Rule 17 CPC and by deciding the appeal of the appellants on merits, in his absence. It was held that the High Court had transgressed its limits in taking into account all the relevant aspects of the matter and dismissing the said appeal on merits, holding that there was no ground to interfere with the decision of the trial court. 12. In Ajit Kumar Singh case as well, the same legal position is reiterated as is clear from para 8 of the said judgment which is reproduced below: “8. There can be no doubt that the High Court erroneously interpreted Rule 11(1) of Order 41 CPC. The only course open to the High Court was to dismiss the appeal for non-prosecution in the absence of the advocate for the appellants. The High Court ought not to have considered the merits of the case to dismiss the second appeal. (See: Rafiq v. Munshilal). The same view was reiterated in Abdur Rahman v. Athifa Begum.” 8. The irresistible conclusion is that 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 course open to the appellate court is to dismiss the appeal for non-prosecution or to adjourn the same to another date. The learned appellate court has travelled beyond its jurisdiction in deciding the appeal on merit in absence of the learned counsel for the appellant. The substantial question of law enumerated in ground no.(i) has been answered in negative. 9. The next question is that even if the appeal was to be dismissed for non-prosecution, whether that order is to be recalled on the application made by the appellant. Under Rule 19 of Order 41 C.P.C., the appellant has to show sufficient cause for his nonappearance. 10. In the result, the judgment and decree dated 28.11.1995 and 11.12.1995 passed by the learned 1st Additional District Judge, Ganjam, Berhampur in Title Appeal No.10 of 1993 is set aside. Under Rule 19 of Order 41 C.P.C., the appellant has to show sufficient cause for his nonappearance. 10. In the result, the judgment and decree dated 28.11.1995 and 11.12.1995 passed by the learned 1st Additional District Judge, Ganjam, Berhampur in Title Appeal No.10 of 1993 is set aside. The matter is remitted back to the learned appellate court. The learned appellate court shall decide the application of the appellant for his non-appearance and then proceed with the hearing of the appeal. Accordingly, this appeal is allowed to the extent indicated above. 11. Since the appeal has been remitted back to the learned appellate court for de novo hearing, the substantial questions of law enumerated in ground nos.(ii) to (iv) are left open.