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2017 DIGILAW 925 (CAL)

Kultali Food Marketing Pvt. Ltd. v. Barun Ghosh

2017-11-27

I.P.MUKERJI, MD.MUMTAZ KHAN

body2017
JUDGMENT : Re. : CAN 5583 of 2017 (Recalling) & CAN 11031 of 2017 (Re-hearins) 1. The application CAN 11031 of 2017 for re-hearing of the appeal is treated as on the day's list. The order dated 7th June, 2017 ought to be recalled. The ground for setting it aside is plain and simple. If the appellants were not before the Court, the Court could only have dismissed it for default under Order 41 Rule 11(2) of the Code of Civil Procedure. The explanation to Order 41 Rule 17 stipulates that dismissal of an appeal for default shall not be construed as empowering the Court to dismiss the appeal on the merits. In this case, in the order dated 7th June, 2017, the Court has entered into the merits of the case in the absence of the appellants and dismissed it. 2. It is contrary to the judgment of the Supreme Court (Secretary, Deptt. of Horticulture, Chandigarh & Anr. vs. Raghu Raj reported in AIR 2009 SC 514 ). We insert paragraphs 44 and 45 of that judgment as follows:- "44. It is true that in the instant case, the appeal before the High Court was not an Appeal from Original Decree (First Appeal), but an Appeal from Appellate Decree (Second Appeal). But Rule 1 of Order XLII which deals with Appeals from Appellate Decrees (Second Appeals) lays down procedure and expressly states that the Rules of Order XLI shall apply so far as may be to Appeals from Appellate Decrees. Prima facie, therefore, it appears that once an appeal is admitted and is placed for hearing i.e. hearing on merits, it can be dismissed for default but cannot be decided on merits in absence of appellant (or his advocate)." "45. In view of the fact, however, that in our opinion, on the facts in their entirety, the High Court ought not to have proceeded to decide the appeal, we hold that the impugned order of the High Court is liable to be set aside. In view of this conclusion, we clarify that we may not be understood to have expressed final opinion one way or the other as regards interpretation of Rule 17 of Order XLI read with Rule 1 of Order XLII." 3. In those circumstances, we recall the judgment and order elated 7th June, 2017. 4. In view of this conclusion, we clarify that we may not be understood to have expressed final opinion one way or the other as regards interpretation of Rule 17 of Order XLI read with Rule 1 of Order XLII." 3. In those circumstances, we recall the judgment and order elated 7th June, 2017. 4. The applications CAN 5583 of 2017 and CAN 11031 of 2017 are hereby allowed. Re. : CAN 8616 of 2017 (Recalling) 5. For the self-same reasons, the application made by the State being the appellant in the connected appeal (FMA 2272 of 2016) is also allowed. 6. By consent of the parties, the papers in the stay application will be treated as the papers of the appeals. 7. All other formalities are dispensed with. 8. Let the appeal be listed for hearing fairly at the top on 20th December, 2017. Urgent certified photo copy of this order, if applied for, be given to learned advocates for the parties upon compliance of all requisite formalities.