Research › Search › Judgment

J&K High Court · body

2021 DIGILAW 99 (JK)

Doulat Ram v. Roop Chand

2021-03-19

JAVED IQBAL WANI

body2021
JUDGMENT : 1. Instant petition is filed for readmission/restoration of Civil First Appeal bearing CFA No. 22/2013. 2. The background facts those emerge from the case in hand are that a suit came to be filed on 24.01.2008 by the petitioners and proforma respondent Nos. 12 to 14 herein in respect of a land situated at Village Kandrori against the contesting respondents herein. The said suit is stated to have been dismissed by the Trial Court vide judgment and decree dated 30.04.2013. 3. Against the said judgment and decree (supra) the petitioners herein state to have filed a Civil First Appeal bearing CFA No. 22/2013. The aid appeal is stated to have been dismissed on 17.09.2018 by this Court along with a connected writ petition bearing OWP No. 1798/2015 in absence of the present petitioner/appellants herein. 4. It is being stated that on 17.09.2018 the appeal along with the writ petition (supra) were listed for final hearing before this Court at S. No. 30 and when the case was taken up, the arguing counsel for the respondents 1 to 11 was not present and that the petitioners was told that the cases stand adjourned and it is further stated that the petitioners were under the impression that the aforesaid cases would be again listed for final hearing. It is stated that on 24th September, 2018 the clerk of the counsel for the petitioners informed the petitioners that the above titled appeal and writ petition is dismissed on 17.09.2018. The information is stated to be shocking and suppressing for the petitioners. It is being stated that the appellant No. 1 sent his grandson, namely, Sh. Ankush Vaid and appellant No. 2 sent his son Sh. Surinder Vaid to contact counsel where upon it is being stated that they had not been informed that the appeal has been decided on 17.09.2018 and judgment announced under Section 138 clause 3 of the J&K High Court Rules, 1999. 5. It is being further stated that the counsel informed the above relatives of the petitioner Nos. 1 and 2 that they were under the impression that the case had been adjourned on 19.07.2018, but in fact had been kept on Board for next date that is 20.07.2018 and on the said date counsel did not appear and then the case was heard and reserved on the said date. 1 and 2 that they were under the impression that the case had been adjourned on 19.07.2018, but in fact had been kept on Board for next date that is 20.07.2018 and on the said date counsel did not appear and then the case was heard and reserved on the said date. It is being stated that the counsel expressed ignorance about keeping of the case on Board for 20.07.2018 and reserving the same for judgment. It is being contended in the application that the appellants and their counsel was not admittedly present on 20.07.2018 when the case was reserved for judgment and that it appears that the Court heard the respondents, reserved the aforesaid appeal as well as writ petition whereafter dismissed the same on 17.09.2018. 6. The fundamental contention urged in the instant application is that in the aforesaid facts and circumstances, the appeal could not have been dismissed on merits by the Court and least could have been dismissed in default. The appeal, therefore, through the medium of the instant application is sought to be restored and re-admitted to its original number along with instant applications. 7. Per-contra respondent-10 in the objections filed resist and controvert the contentions raised in the application so-much-so seeks dismissal of the application on the premise that the order of dismissal of the appeal has been passed legally by the Court and that the application in question is not maintainable being utterly misconceived and unsustainable in the eyes of law. 8. It is being further contended in the objections that appellant has suppressed material facts from this Court regarding the orders passed in the appeal from time to time inasmuch as, about the hearing of the appeal undertaken thereof. A reference in the objections is made to orders dated 15.12.2017, 09.02.2018, 09.04.2018, 05.05.2018, 28.05.2018, 19.07.2018 and 20.07.2018 to demonstrate and show that the appeal was duly heard by the Court affording a reasonable opportunity of hearing to the appellants as well as the respondents. The contention that the appeal was dismissed on merits in absence of the appellants is being stated to be factually incorrect. In essence the said respondent herein seeks dismissal of the instant application. 9. Heard learned counsel for the parties and perused the record. 10. Learned counsel for the parties reiterates their stand in line and tune with their respective pleadings. 11. In essence the said respondent herein seeks dismissal of the instant application. 9. Heard learned counsel for the parties and perused the record. 10. Learned counsel for the parties reiterates their stand in line and tune with their respective pleadings. 11. The moot point involved in the instant petition that begs consideration of this Court is that whether in the facts and circumstances of the case, the appeal could be said to have been decided on merits in absence of the appellant and his counsel in breach of the provisions of Order XLI Rule 17 CPC warranting readmission of the same. 12. Before adverting to the aforesaid point involved in the present petition it would be pertinent to refer hereunder to Order XLI Rule 16 and Order XLI Rule 17 being relevant and germane hereto:- “16. Right to begin.–(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply. 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 is dismissed. [Explanation–Nothing in 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.” 13. Having regard to the aforesaid provision of law as contained in Order XLI Rule 16 and Rule 17 as also various judgments passed by the Apex Court on the subject, the law is no more res-integra that an appeal cannot be dismissed on merits in absence of appellants or his counsel. 14. Having regard to the aforesaid provision of law as contained in Order XLI Rule 16 and Rule 17 as also various judgments passed by the Apex Court on the subject, the law is no more res-integra that an appeal cannot be dismissed on merits in absence of appellants or his counsel. 14. Now coming to the question as to whether the appeal had been dismissed wrongly on merits and in breach of Order XLI Rule 17 it is revealed on perusal of the record of proceedings of the appeal in question that after admission of the appeal in terms of order dated 31.12.2014, the same had been set down for post-admission hearing and as a consequence whereof the hearing of the appellants commenced on 15.12.2017 in terms of Order XLI Rule 16 which provide for right to begin requiring appellant to be heard in support of the appeal when the Court recorded the matter as heard in part in presence of the learned counsel for the appellants as well as the respondents and directed listing of the case on 07.02.2018 for continuation of arguments. 15. Perusal of the record of the proceedings further demonstrate that on 09.02.2018 the hearing had got adjourned on account of non-appearance of counsel for the respondents and the counsel for the appellants had been present plainly suggesting that the counsel for the appellant had already been heard and that the respondents counsel have had to be heard in the matter. The appeal as such had got adjourned for continuation of arguments to 13.02.2018. 16. Perusal of the record of the proceedings further demonstrates that the appeal had got adjourned on the next date of hearing i.e., on 09.04.2018 as well and 05.05.2018, on which dates none had appeared for the parties except respondent No. 9 who had appeared in person. 17. Perusal of the record of the proceedings further demonstrates that on 28.05.2018 both appearing counsels had been present before the Court suggesting that the counsel for the respondents had been heard directing listing of the matter for continuation on 29.05.2018. 18. 17. Perusal of the record of the proceedings further demonstrates that on 28.05.2018 both appearing counsels had been present before the Court suggesting that the counsel for the respondents had been heard directing listing of the matter for continuation on 29.05.2018. 18. Further perusal of the record of the proceedings demonstrates that the appeal had come up for consideration on 19.07.2018 on which date the appearing counsel for the parties had been present and the appeal had been kept on board for 20.07.2018, on which date the appeal is recorded to have been heard and reserved. Admittedly, neither the appellant nor his counsel on the said date had been present. 19. The aforesaid position ex facie imply that the hearing of the appeal had commenced on 15.12.2017 in presence of counsel for the parties and concluded on 19.07.2018 in presence of the counsel for the parties whereafter on 20.07.2018 it had been reserved for orders notwithstanding the use of expression “heard” appearing therein. 20. It is not the case set up by the appellants that they were not heard in the matter at all and in the process were deprived of the right to begin under Order XLI Rule 16. The above narration of facts are suffice to show that the appellant as well as respondents stand heard in the appeal having been provided with the real opportunity of being heard by the Court and upon conclusion of the hearing the appeal had been reserved on 20.07.2018. The non-appearance of the appellants and their counsel thus on the said date, as such, pales into insignificance. 21. Further the cause expressed in the application in hand for non- appearance of the appellant on 20.07.2018 is manifestly insufficient and not convincing, in that, firstly, the counsel for the appellant has been present on 19.07.2018 when the appeal had been kept on board for 20.07.2018 as presumption of correctness is attached to the order of the Court proceedings recorded thereon on the appeal, unless anything contrary is shown thereof and secondly, mere assertion of the counsel of the appellants detailed out in the instant application in this regard becomes insignificant in absence of an affidavit of counsel of the appellants in support of the said contention. 22. 22. The case seemingly is not a case of non-appearance simplicitor of the appellants or their counsel, whereunder Court could not have decided the appeal in question on merits in absence of the appellants or their counsel. The application thus is held misconceived and entails dismissal and, is accordingly, dismissed.