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2022 DIGILAW 1882 (ALL)

Mohd. Miyan v. Nawab Hussain

2022-11-29

DINESH PATHAK

body2022
JUDGMENT : 1. Heard learned counsel for the appellant and learned counsel for the respondent. 2. Instant second appeal has been preferred on behalf of the plaintiff-appellant challenging the judgment and decree dated 24.01.2019 passed by The IIIrd Additional District and Sessions Judge, Pilibhit in Civil Appeal No. 1 of 2016 (Mohd. Miyan Vs. Nawab Hussain) dismissing the appeal of the plaintiff-appellant preferred against the judgment and decree dated 02.12.2015 passed by the Civil Judge (Junior Division), Pilibhit in Original Suit No. 131 of 1995. 3. Plaintiff-appellant has filed suit for permanent injunction against the defendant-respondent, which was concurrently discarded by the courts below. Instant second appeal has been preferred on behalf of the plaintiff-appellant on the limited point qua opportunity of hearing with a plea that first appeal filed on his behalf has been dismissed ex parte in his absence without affording him opportunity of hearing in violation of the provisions as enunciated under Order 41 Rule 17(1) of C.P.C. 4. Vide order dated 29.04.2019 record of courts below is summoned and instant second appeal has been ordered to be admitted on the following substantial question of law : "(i) whether when in the order sheet there was a recital that the appellant was not present then could the first appellate court have found that the parties were heard and thereafter could have decided the appeal on merits; (ii) whether in the absence of the appellant, the appeal should have been dismissed in default under Order 41 Rule 17 (1) C.P.C. 5. Before entering into the merits of the instant second appeal as submitted by the counsel for the appellant, the relevant provisions relating to the decision on appeal in absence of appellant is required to be examined. In this respect Order 41 Rule 17 C.P.C. and Order 41 Rule 19 C.P.C., which are relevant, are quoted herein below:- "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 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. 19. Explanation: Nothing 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. 19. Re-admission of appeal dismissed for default.- Where an appeal is dismissed under rule 11, sub-rule (2) or rule 17 [***, the appellant may apply to the Appellate Court for the re-admission of the appeal; and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. 6. Explanation to rule 17(1) of Order 41 C.P.C., which was added by virtue of Act 104 of 1976, clearly denotes that in absence of the appellant, appeal should not be dismissed on merits. Conjoint reading of rule 17 and its explanation makes it explicit that in absence of the appellant, appellate court utmost dismiss the appeal in default, however, it does not have the jurisdiction to dismiss it on merits. Rule 2 of Order 41 C.P.C. further clarifies that in case the appellant is present but the respondent is absent in that condition appeal can be heard ex parte and decided. The intention of the legislation is very much clear that the appeal should not be dismissed on merits in absence of the appellant. Provision as enunciated under Order 41 rule 19 C.P.C. provides remedial measure to cope up the consequential effect of provisions as enunciated under rule 17 of Order 41 C.P.C. The appellant whose appeal got dismissed for want of prosecution can be resorted to under the provisions of Order 41 rule 19 C.P.C. for readmission of the appeal. Therefore, legislation is intended to decide the appeal on merits only in presence of appellant, who has already lost his case from the trial court, not in his absence. Appellant, in case, is absent on the day of hearing, he can not be precluded from defending his case on merits. 7. In the given circumstances there is a contradictory observations made by the first appellate court in order sheet dated 18.01.2019 and final judgment dated 24.01.2019 with respect to the presence of appellant on the date of hearing of civil appeal. 8. 7. In the given circumstances there is a contradictory observations made by the first appellate court in order sheet dated 18.01.2019 and final judgment dated 24.01.2019 with respect to the presence of appellant on the date of hearing of civil appeal. 8. Counsel for the appellant submits that initially the appeal was pending in the court of Additional District and Sessions Judge/Family Court/Fast Track Court, Pilibhit. Vide order dated 14.01.2019 passed by the District Judge, the appeal was transferred from the said court to the court of IIIrd Additional District and Sessions Judge, Pilibhit, who has, on the same day i.e. 18.01.2019, received the file and, thereafter, heard the matter ex parte in absence of the appellant and fixed 24.01.2019 as a date for orders. Finally, appeal was dismissed on 24.01.2019. In support of his contention learned counsel for the appellant has drawn attention of the Court towards paragraph nos. 8 to 16 of the affidavit filed in support of the stay application, wherein it is specifically averred that after transfer of appeal, in pursuance of the order dated 14.01.2019, from the court of Additional District and Sessions Judge/Family Court/Fast Track Court, Pilibhit, the transferee court, namely, IIIrd Additional District and Sessions Judge, Pilibhit has heard the matter on the same day without any notice and without giving opportunity of hearing to the appellant, which is in violation of the provisions as enunciated under Rule 89-A of General Rules (Civil), 1957. There is no specific denial to this averment at the part of the respondent in his counter affidavit. Simple averment has been made in paragraph nos. 16 to 20 of the counter affidavit that the appellant was aware about the pendency of the civil appeal but nothing has been brought on record to contradict the factum of absence of appellant that the appellant was present in the court and he or his counsel was heard on the date of hearing in deciding the appeal. In support of his contention, learned counsel for the appellant has cited following cases : 1. Shaukat Hussain vs. Smt. Saroj Bala and others; 2005 (1) ARC 21 . 2. Ajit Kumar Singh and others vs. Chiranjibi Lal and others; 2002 (1) ARC 531. 3. Abdur Rahman and others vs. Athifa Begum and others; (1996) 6 SCC 62 . 9. In support of his contention, learned counsel for the appellant has cited following cases : 1. Shaukat Hussain vs. Smt. Saroj Bala and others; 2005 (1) ARC 21 . 2. Ajit Kumar Singh and others vs. Chiranjibi Lal and others; 2002 (1) ARC 531. 3. Abdur Rahman and others vs. Athifa Begum and others; (1996) 6 SCC 62 . 9. Perusal of record reveals that, vide order dated 18.01.2019, previous court i.e. Additional District and Sessions Judge/Family Court/Fast Track Court, Pilibhit has passed order to transfer the case from its court to the court of IIIrd Additional District and Sessions Judge, Pilibhit, in pursuance of the transfer order dated 14.01.2019. On the same day transferee court has received the record and heard the respondent in appeal ex parte on merits in absence of the appellant and time was given to the appellant to advance his submissions up to 3.40 p.m. There is nothing on record to show that the appellant was heard before passing the final judgment in the appeal. Perusal of the judgment dated 24.01.2019 passed by the IIIrd Additional District and Sessions Judge, Pilibhit reveals that nothing has been whispered with respect to the presence of the appellant. In deciding the appeal, the appellate court has made following remarks "Pakschho Ko Suna Avam Patrawali Ka Avlokan Kiya" ("Heard the parties and perused the record"-translated by the Court). Learned counsel for the appellant has vehemently assaulted this observation made by the court and submitted that the said observation is perverse and not in consonance with the order-sheet dated 18.01.2019, which clearly reflects that on the same day i.e. 18.01.2019 case was transferred from the court of Additional District and Sessions Judge/Family Court/Fast Track Court, Pilibhit to the court of IIIrd Additional District and Sessions Judge, Pilibhit. On the same day transferee court has received the record of the appeal and heard the same ex parte in absence of the appellant. The order-sheet reveals that there are three endorsements on the order-sheet referring to the order dated 18.01.2019. First order of 18.01.2019 was written by the Additional District and Sessions Judge/Family Court/Fast Track Court, Pilibhit qua transfer of case from his court to the court of IIIrd Additional District and Sessions Judge, Pilibhit. The order-sheet reveals that there are three endorsements on the order-sheet referring to the order dated 18.01.2019. First order of 18.01.2019 was written by the Additional District and Sessions Judge/Family Court/Fast Track Court, Pilibhit qua transfer of case from his court to the court of IIIrd Additional District and Sessions Judge, Pilibhit. Second order dated 18.01.2019 reflects that it was written by the IIIrd Additional District and Sessions Judge, Pilibhit qua receiving of the record after transfer in pursuance of the order dated 14.01.2019. The third order of the same date i.e. 18.01.2019 indicates that the matter was heard in absence of the appellant, who was granted time to appear and advance his arguments till 3.40 p.m. 10. This Court has noted with utmost surprise as to how two orders of the order-sheet dated 18.01.2019, which are supposed to be written by the IIIrd Additional District and Sessions Judge, Pilibhit, did not bear signature of the presiding officer concerned, whereas below there to the order-sheet date 24.01.2019 is written indicating delivery of judgment, by which appeal was dismissed, bears the signature of the presiding officer. In absence of signature of presiding officer over the two order-sheets of dated 18.01.2019 creates suspicion as to under which circumstances concerned presiding officer has not made his signature, whereas on the subsequent order-sheet dated 24.01.2019 he has made his signature. 11. I constrained myself, at this juncture, to go into the controversy with respect to the genuineness of both the order-sheets dated 18.01.2019. In light of the averment made in the affidavit filed in support of the stay application, which is not properly denied by the respondent, this Court has no option but to accept the submission made by the learned counsel for the appellant that the judgment passed by the first appellate court was an ex parte in absence of the appellant. 12. It is apposite to mention the provisions as enunciated under Rule 89-A of General Rules (Civil) has also not been complied with, wherein there is a provision of intimation to the parties of appeal/case concerned after transfer of the case from one court to another court. For ready reference provisions as enunciated under Rule 89A is being quoted herein below:- 89A. For ready reference provisions as enunciated under Rule 89A is being quoted herein below:- 89A. Procedure to be followed on transfer or withdrawal of cases.-(1) When a case, i.e. a suit, appeal or other proceedings in which a date for attendance of a party or the parties in a particular court has been fixed, is transferred from one court to another, the former court shall record the order of transfer in the order-sheet and get it signed by counsel of the party or parties, if any party is unrepresented information shall be sent to his registered address. The case shall be called out by the other court on the date already fixed by the transferring court and the presence of the parties noted. (2) A note to the effect that a party or the parties have been informed in accordance with sub-rule (1) shall be made on the record by the transferring court. (3) Where cases are transferred in a large number the court from which they are transferred shall besides following the procedure laid down in sub-rule (1), draw up a list mentioning in it the numbers and years of the cases and the names of the parties and their counsel, and shall cause one copy of it to be posted on the notice-board of the local bar association for information of the members of the bar and another copy to be posted on the notice-board of the court for information of the general public. It shall also send to the other court along with the records of the transferred cases, a copy of the list (or relevant extract of it); the other court shall post it on its own notice board. If the other court is situated in a different place in which there is another bar association, an extra copy of the list shall be sent to it for being posted on the notice-board of the bar association. (4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer. (5) In sub-rules (1) to (4) 'transfer' includes withdrawal of a case. 13. (4) The court to which cases are transferred shall not proceed without satisfying itself that the parties or their counsel, as the case may be, have been informed of the transfer. (5) In sub-rules (1) to (4) 'transfer' includes withdrawal of a case. 13. In the facts and circumstances of the present case, it is clearly demonstrated that in pursuance of the order dated 14.01.2019 passed by the District Judge, Pilibhit, the appeal was transferred from the previous court i.e. Additional District and Sessions Judge/Family Court/Fast Track Court, Pilibhit to the court of IIIrd Additional District and Sessions Judge, Pilibhit. On the same day i.e. 18.01.2019 three orders were written on the order-sheet; first regarding transfer of the appeal from the previous court; second was written by the transferee court, who has received the record of the appeal and third was also written by the transferee court qua hearing of the appeal ex parte in absence of the appellant. There is nothing on record to demonstrate that the provisions as enunciated under Rule 89-A of General Rules (Civil) has been complied with and any notice has been issued or served upon the parties intimating them with respect to the transfer of the appeal from one court to another court. Transfer of appeal and its hearing on the same date i.e. 18.01.2019 clearly indicates that the appeal has been heard without proper intimation to the appellant. There is nothing on record to demonstrate that appellant or his counsel was present at the time of transfer of the appeal or at the time of receiving the appeal or at the time of hearing of the appeal. There is no signature of the appellant or his counsel on the margin of the order-sheet to prove their awareness about the transfer of the appeal or its hearing as required under rule 89-A of General Rule (Civil). 14. In this conspectus, as above, I am of the considered view that the civil appeal before first appellate court has been received by the transferee court and heard ex parte on the same day i.e. 18.01.2019 without fulfilling the formalities as required under Rule 89-A of General Rules (Civil) and the appeal was finally decided in absence of appellant against the intend of the legislation as enunciated under Order 41 rule 17(1) C.P.C. 15. Accordingly, substantial question of law as framed by this Court is answered. Accordingly, substantial question of law as framed by this Court is answered. Observation made by the first appellate court qua "Pakschhon Ko Suna" (Heard the parties) is not in consonance with the order dated 18.01.2019 wherein appellant has been shown to be absent and the first appellate court has inherent lack of jurisdiction to decide the appeal on merits in absence of the appellant as enunciated under Order 41 Rule 17(1) of C.P.C. 16. Appeal is allowed and remitted before the first appellate court to decide it afresh, after giving due and proper opportunity of hearing to the parties. As such, record of the instant appeal be remitted before the first appellate court and the civil appeal, which was decided by ex parte judgment, is restored to its original number and parties are relegated before the first appellate court to get the matter decided afresh. 17. Judgment is passed in the presence of the counsel for both the parties, who have shown their agreement that parties will appear before the first appellate court on 16.01.2023. 18. Office is directed to remit the record of the instant appeal as early as possible, preferably within a period of four weeks from today.