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2017 DIGILAW 739 (ORI)

Budhiman Biswal v. State of Orissa

2017-07-17

D.DASH

body2017
JUDGMENT : This second appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Kamakhyanagar in R.F.A. No. 49 of 2012 (28/2014). By the said judgment and decree, the lower appellate court has set aside the judgment and decree passed by the learned Civil Judge (Sr. Division), Kamakhyanagar in Civil Suit No.11 of 2008 decreeing the suit filed by the appellant as the plaintiff. The above noted first appeal had been filed by the defendants as the appellants, being aggrieved by the judgment and decree passed by the trial court in the said suit declaring the right, title and interest of the appellant-plaintiff over the suit land with confirmation of his possession. The lower appellate court by the impugned judgment and decree has dismissed the suit filed by the appellant-plaintiff. 2. The appeal has been admitted on the following substantial question of law: “Whether in the absence of appellant (plaintiff) as also the respondents (defendants) and the learned counsel representing them in the first appeal under section 96 of the Code, the course adopted by the first appellate court in proceeding to dispose of the appeal, on merit in finally allowing the same by setting aside the judgment and decree passed in the suit filed by the present appellant standing in his favour is permissible in the eye of law so as to have the legal sanction?” 3. Learned counsel for the appellant submits that the appeal was posted to 22.01.2016 for hearing and on that day the parties were not present and the learned counsel appearing on their behalf were also absent as the members of the local Bar Association were abstaining from the court work. In such situation, the lower appellate court without giving any further opportunity for hearing of the appeal has gone to peruse the case record and then has finally delivered judgment on 05.02.2016 by allowing the appeal, in setting aside the findings of the trial court and dismissing the suit filed by the present appellant-plaintiff. According to him, the course adopted by the lower appellate court is not permissible under the provisions of Order-41 of the Code of Civil Procedure (in short, hereinafter called as ‘the Code’). According to him, the course adopted by the lower appellate court is not permissible under the provisions of Order-41 of the Code of Civil Procedure (in short, hereinafter called as ‘the Code’). It is his submission that the lower appellate court in that situation even when was not inclined to adjourn the hearing of the appeal ought to have dismissed the said appeal in view of the absence of the parties. Thus, he submits that the substantial question of law as above has to receive its answer in the negative that the course adopted by the lower appellate court does not have the sanction of law. 4. Learned Additional Government Advocate does not dispute the factual position that on that date fixed for hearing of the appeal, the counsel for the respondent, i.e., State Counsel was not present in view of the call given by the members of the local Bar. 5. Sub-Rule-1 of, Rule-17 of Order-41 of the Code provides that where on the day fixed, or on any other day to which the hearing of the appeal 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. Sub-Rule-2 of the said Rule provides that where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. Here in the instant case neither the appellants nor the respondent were present on the date fixed for hearing. The counsel appearing on their behalf were also not present to represent them. The first appeal had been filed questioning the judgment and decree passed by the trial court in decreeing the suit of the respondent granting the relief of declaration of right, title, interest and confirmation of possession. The last portion of paragraph-7.1 of the judgment of the lower appellate court which is relevant for the present reads as under:- “The findings of the learned lower Court are challenged in this Regular First Appeal. The last portion of paragraph-7.1 of the judgment of the lower appellate court which is relevant for the present reads as under:- “The findings of the learned lower Court are challenged in this Regular First Appeal. But when the appeal was posted for hearing the learned Advocate for the parties did not appear in Court for argument as the members of the local Bar Association abstained from Court work, hence this judgment on perusal of the materials on record.” The lower appellate court then has gone to render the judgment viewing the grounds taken in the memorandum of appeal and on going through the pleadings of the parties as well as the evidence that they had placed. Having differed with the findings recorded by the trial court, those have been set aside and the appeal has been allowed which has led to the dismissal of the suit. That is how the present appellant has been adversely visited with by way of denial of the reliefs as prayed for which had been so granted by the trial court. 6. The lower appellate court was in seisin of the first appeal under section 96 of the Code. The procedures for such appeals from the original decrees have been provided in the Rules under Order-41 of the Code. The provisions of law do not empower the first appellate court that either in the absence of appellant, it can go to the merit in judging the sustainability of the findings as well as the impugned judgment and decree and dismiss the appeal or in the absence of appellant, it can allow the appeal on merit or that in the absence of the parties it can dispose of the appeal either way on merit. When on the date fixed for hearing of the appeal, the appellant was absent, the course permissible is to dismiss the appeal for default of the appellant and where of course, the appellant is present and the respondent is absent, it is permissible to take up ex parte hearing of the appeal for its disposal accordingly. When on the date fixed for hearing of the appeal, the appellant was absent, the course permissible is to dismiss the appeal for default of the appellant and where of course, the appellant is present and the respondent is absent, it is permissible to take up ex parte hearing of the appeal for its disposal accordingly. In the absence of the parties to the appeal, the first appellate court is not empowered to decide the appeal on merit either way which has been done in the instant case that the lower appellate court in that eventuality without hearing the parties, on its own by going through the materials available on record has judged the sustainability of the findings of the trial court and has finally allowed the appeal by setting aside the findings as well as the judgment and decree passed by the trial court in favour of the appellant granting the reliefs as prayed for. In the wake of aforesaid, this Court is led to answer the above substantial question of law in the negative that the course adopted by the first appellate court has no legal sanction and as such the judgment and decree passed by it which are impugned in this appeal are held unsustainable. Accordingly, this Court unhesitatingly sets aside the judgment and decree passed in R.F.A. No. 49 of 2012 (28/2014). 7. In the result, the second appeal is allowed and in the facts and circumstances without cost. The judgment and decree passed in R.F.A. No. 49 of 2012 (28/2014) being set aside, the said appeal is now remitted to the Court of the learned Additional District Judge, Kamakhyanagar for its disposal afresh in accordance with law after providing opportunity of hearing to the parties. In order to save delay, in the process, the parties are directed to appear before the said court on 04.08.2017 to receive further instruction and to cooperate with the hearing of the appeal for its disposal as expeditiously as possible preferably within a period of three months.