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2017 DIGILAW 486 (CAL)

Asim Kumar Chowdhury v. Monojit Das

2017-05-16

MIR DARA SHEKO

body2017
JUDGMENT : MIR DARA SHEKO, J. 1. This is one of some other unfortunate events came to the notice of this Court where the first appeal being Misc. Appeal (Pre-emption) No. 24 of 2016 preferred by the appellant-petitioner against an order of pre-emption allowed by learned Civil Judge (Junior Division), 1st Court, Malda in Misc. Pre-emption Case No. 46 of 2014 is said to have been decided by dismissing the appeal by passing necessary order and a judgment (9 Sheets) of which was kept separately, although both the appellant and the respondent or their learned Advocates were found absent before learned appellate Court without step. Ms. Sarkar, learned Advocate appearing for the petitioners, relying upon a decision of the Supreme Court in the case of Ajit Kumar Singh & Ors. v. Chiranjibi Lal & Ors. reported in AIR 2002 SC 1447 (2) and an unreported decision passed by this Court on April 6, 2017 in CO No. 775 of 2017, (Md. Monsur Rahaman v. Naitul Sk) submitted that in the given sequence as appearing from the impugned order, at best, the appeal ought to have been directed to be dismissed for default. 2. On the other hand, Dr. Mondal assisted by Mr. Banerjee representing the opposite party, in his usual fairness, admitted about the legal position and submitted that in that given situation where both the sides remained un-represented before learned appellate Court, either the misc. appeal for the interest of justice would have been date, or, taking worst view of the same, the appeal could have been dismissed for default with or without costs. 3. In the case of Ajit Kumar Singh (supra) the similar situation arose where learned Counsel for the appellants did not appear before the Patna High Court; and the High Court, in its turn, instead of dismissing for non-prosecution in absence of the appellants, dismissed the second appeal on merits which was disapproved by the Supreme Court in view of the provision laid down under Order 41 Rule 11, CPC. 4. In the second cited case of Md. Monsur Rahaman (supra), this Court on April 6, 2017 held as follows:- "The grievance of the petitioner is that though neither party was represented before the appellate Court, the appellate Court considered the matter on merits. The petitioner submits that it was not open to the appellate Court to adopt such course of action. Monsur Rahaman (supra), this Court on April 6, 2017 held as follows:- "The grievance of the petitioner is that though neither party was represented before the appellate Court, the appellate Court considered the matter on merits. The petitioner submits that it was not open to the appellate Court to adopt such course of action. It is elementary that if a suitor is not represented before a Court, the matter has to be dismissed on the ground of default. Ordinarily, the merits of a matter are not gone into when no one appears to support the claim or the case. Accordingly, CO 775 of 2017 is allowed by setting aside the order impugned dated June 24, 2015 passed by the District Judge, Malda in Misc. Appeal (Preemption) No. 21 of 2015. The appeal is now restored before the Court of the relevant District Judge for it to be dealt with in accordance with law. The District Judge is directed to refrain from adopting the same course of action in future matters before her." 5. Learned District Judge in dealing with the misc. appeal is not entitled to invent a new procedure, which is neither laid down in the Code of Civil Procedure nor approved by any authority laying binding precedent. Rattier what has been laid in the Code in Order 41 Rule 17(1) let it be set out:- "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." Never ever there is any dispute that a pre-emption which is registered somewhere as misc. case or somewhere judicial misc. case, but it attains finality by its last order on merit either allowing or rejecting prayer of preemption. Said order thereby is appealable and its nomenclature is misc. appeal to be disposed of by learned District Judge of the concerned district or by any other Court on transfer having competence of appellate jurisdiction. As a consequence of preferring a misc. appeal against the decisive order of trial Court as per Rule 2 of Order 43 of the Code of Civil Procedure which is set out:- "2. appeal to be disposed of by learned District Judge of the concerned district or by any other Court on transfer having competence of appellate jurisdiction. As a consequence of preferring a misc. appeal against the decisive order of trial Court as per Rule 2 of Order 43 of the Code of Civil Procedure which is set out:- "2. Procedure.- The rules of Order XLI shall apply, so far as may be, to appeals from orders." Therefore, by insertion of the "Explanation" to Rule, 17(1) of Order XLI of the Code by amendment in 1976 there is no ambiguity that in the sequence of Rule 17(1) of Order XLI any order or judgment recording dismissal of the misc. appeal as happened in the case on merit in absence of the appellant or his/her counsel is without jurisdiction. Thus this shall be maintained as the settled law that in the impugned sequence the appellate Court cannot dismiss the appeal or misc. appeal on merit. In the impugned circumstance learned District Judge ought to have dismissed the misc. appeal under Order XLI Rule 17(1) of the Code which is pari materia with Order IX Rule 3 of the Code. 6. In view of the above observations vis-a-vis the procedural law available in the Code by which a civil proceeding starts and ends, the judgment and order dated August 26, 2016 passed by learned District Judge, Malda, being held to be absolutely illegal, is set aside and quashed with direction to learned District Judge to post the misc. appeal in the diary and the cause list for hearing afresh by bringing to the notice of learned counsels of both parties; and if either of the counsels is not found present, then inform absentee party by service of notice under registered/speed post with AD card on official expense directly upon the absentee party at the address as available on record and re-hear the misc. appeal for its disposal in accordance with law. 7. With the above directions, the revisional application under Article 227 of the Constitution is allowed without any order as to costs. 8. The department is directed to communicate a copy of this order, to learned District Judge, Malda for information and necessary action at once. Urgent certified photostat copy of this order, if applied for, shall be given to the parties.