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2017 DIGILAW 58 (CAL)

Lachman Kumar Agarwala v. Pawan Kumar Agarwala

2017-01-10

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

body2017
JUDGMENT : Jyotirmay Bhattacharya, J. 1. This is a defective appeal. There are various defects in the appeal. Defects are notified in the report of the Stamp Reporter. However, with the leave of the Court, some of such defects have been cured. The other defect has also been cured on payment of deficit court fees. We are informed by Mr. Banerjee, learned advocate appearing for the appellant that deficit court fees of Rs.122.50p. has already been put in vide filing No. A-732 dated 10.01.2017. Thus, this defect is rectified. The other defects in the memorandum of appeal have also been rectified by the learned advocate-on-record of the appellant with the leave of the Court. 2. The instant second appeal is directed against a judgment and decree passed by the learned Judge, XIIIth Bench, City Civil Court at Calcutta on 12th May, 2016 in Title Appeal No. 35 of 2009 affirming the judgment and decree dated 26th May, 2009 passed by the learned Judge, 6th Bench, Presidency Small Causes Court at Calcutta in Ejectment Suit No. 2597 of 2000 at the instance of the defendant/appellant. 3. Let us now consider the merit of the appeal to find out as to whether any substantial question of law is involved in this appeal for which the appeal is required to be admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure or not. 4. The suit for eviction filed by the plaintiffs/respondents was decreed on contest on the ground of reasonable requirement of the plaintiffs by the learned Trial Judge. The legality of the said judgment and decree of the learned Trial Judge was challenged in appeal by the defendant/appellant before the learned first Appellate Court. On the adjourned date of hearing of the said appeal, the appellant remained absent. In spite thereof, the learned first Appellate Court, instead of dismissing the appeal for default by following the provision contained in Order XLI Rule 17 of the Code of Civil Procedure, decided the appeal on merit and ultimately dismissed the appeal by affirming the judgment and decree of the learned Trial Court. The legality and/or propriety of the said judgment and decree of the learned first Appellate Court is under challenge in this second appeal. 5. The legality and/or propriety of the said judgment and decree of the learned first Appellate Court is under challenge in this second appeal. 5. We feel that in view of the provision contained in Order XLI Rule 17 of the Code of Civil Procedure, learned first Appellate Court ought not to have decided the said appeal on merit in the absence of the appellant. As such, we feel that a substantial question of law is involved in this appeal. Accordingly, we admit this appeal on the following ground:- Whether the learned first Appellate Court was justified in deciding the appeal on merit in the absence of the appellant? 6. Since only a pure question of law is involved in this appeal, we feel that the appeal can be decided on merit even in the absence of the lower court records. As such, the lower court records need not be called for. 7. The plaintiffs/respondents are represented by their learned advocate. As such, further service of notice of appeal upon the plaintiffs/respondents is dispensed with. The appeal, thus, be treated ready as regards service of notice of appeal upon the respondents. 8. Immediately after the appeal was admitted for hearing under the provision of Order XLI Rule 11 of the Code of Civil Procedure, we are requested by the learned counsel appearing for the parties to dispose of the appeal on merit. Accordingly, we have decided to dispose of the appeal itself on merit by dispensing with the requirement of filing paper book in this appeal. 9. We have already mentioned above that the hearing of the first appeal was fixed on 12th May, 2016. On that date, the defendant/appellant remained unrepresented. The learned first Appellate Court instead of dismissing the appeal for default by following the provision contained in Order XLI Rule 17 of the Code of Civil Procedure, entered into the merit of the appeal and ultimately dismissed the said appeal by affirming the findings of the learned Trial Court. The Explanation added to Order XLI Rule 17 of the Code of Civil Procedure is clear enough to suggest that the Appeal Court is not empowered to dispose of the appeal after entering into the merit of the appeal in the absence of the appellant. The Explanation added to Order XLI Rule 17 of the Code of Civil Procedure is clear enough to suggest that the Appeal Court is not empowered to dispose of the appeal after entering into the merit of the appeal in the absence of the appellant. The only course which was left open to the Appeal Court was to dismiss the appeal for default as per the provision contained in Order XLI Rule 17 of the Code of Civil Procedure. As such, we hold that the learned first Appellate Court was not justified in entering into the merit of the appeal in the absence of the appellant and/or in dismissing the said appeal by affirming the findings of the learned Trial Court, inasmuch as by this process, right to apply for readmission of the appeal as per the provision under Order XLI Rule 19 of the Code of Civil Procedure was taken away from the defendant/appellant. 10. We, thus, hold that the impugned judgment and decree are illegal. The impugned judgment and decree of the learned first Appellate Court are set aside. The appeal is, thus, allowed. 11. We make it clear that the appeal should be deemed to have been dismissed for default as per the provision contained in Order XLI Rule 17 of the Code of Civil Procedure. 12. The appeal and the application for stay being CAN No. 10836 of 2016 are, thus, disposed of.