Chet Ram vs Lachhu etc.

R.S. Pathak, C.J.—This revision petition u/s 115 of the CPC is directed against an order of the learned District Judge, Simla declining to review an earlier order dismissing an appeal.

In a suit for cancellation of a sale one Smt. Thainya applied under Order 39 rules 1 and 2 for an injunction restraining the vendee from proceeding with a suit for redemption filed by him. The trial court granted an ex parte injunction. The vendee, who is the first Respondent before me applied for vacating the ex parte injunction. While this application was pending Smt. Thainya died and substitution proceedings were initiated by her legal representatives. The substitution application was still pending when on August 2, 1972, the trial court allowed the application of the first Respondent and vacated the ex parte injunction. Against that order the legal representatives appealed. The appeal came on before the learned District Judge on September 20, 1973, and he made the following order:

This appeal is dismissed in default. Otherwise also it purports to have been filed in the name of a dead person which deserves dismissal on this ground as well.

The legal representatives then applied to the learned District Judge for review of that order. The review application has been rejected by an order dated January 9, 1975. The legal representatives now apply in revision.

Two contentions have been raised by learned Counsel for the Petitioner. The first is that the learned District Judge misconstrued the factual position when he made the order dated September 20, 1973. It is pointed out that the case was fixed for appearance of the Respondents and if on that date the Appellants could not appear the appellate court did not have jurisdiction to dismiss the appeal in default. It is urged that this constituted an error apparent on the face of the record and the learned District Judge should have treated it as such. I have perused the order sheet of the lower appellate court. The appeal was admitted on August 2, 1972, and notice was issued to the Respondents for September 14, 1972. On the latter date the case was adjouned as the Presiding Officer was on leave and a fresh date was fixed. Notice was not served on the Respondents and again fresh notice was issued. This went on until June 27, 1973, when the appellate court made an order to the following effect:

Issue fresh notice to Respondents 1 and 7 for August 3, 1973.

It appears that the remaining Respondents remained unserved. On August 3, 1973 the appellate court made the following order:

Respondents 1 and 7 again not served. Issue fresh intimation for September 20, 1973....

Thereafter when the case was taken up on September 20, 1973 the Appellants were absent and the appeal was dismissed.

Learned Counsel for the Petitioners contends that when the appellate court ordered on August 3, 1973, that fresh intimation should be issued to Respondents 1 and 7 for September 20, 1973, what was intended was that notice should go to them merely for their appearance before the appellate court and, it is said, September 20, 1973, was not fixed for the hearing of the appeal. I find it difficult to accept that contention. All along several dates were fixed for the hearing of the appeal, but the case had to be adjourned because Respondents 1 and 7 had not been served or because the Presiding Officer was on tour. On June 27, 1973, an order directing issue of notice was made fixing August 3, 1973. That date could only have been a date for the hearing of the appeal. Likewise on August 3, 1973, when the appellate court directed fresh intimation to be issued to the Respondents for September 20, 1973, it could only mean that that date was fixed for hearing the appeal. Clearly, when the appeal was taken up on September 20, 1973, and the Appellants were absent the appellate court was entitled to dismiss the appeal in default.

The second contention of learned Counsel for the Petitioners is that the appellate court was not entitled to dispose of the appeal on its merits in the absence of the Appellants. It is said that inasmuch as the appellate court has also dismissed the appeal on the ground that it was filed in the name of a dead person the order must be treated as an order dismissing the appeal on the merits. Here again, the contention has no force. When an appeal is dismissed on the ground that it has been filed in the name of a dead person, it implies a dismissal on the ground that a null and void proceeding has been instituted. A dismissal on that ground cannot possibly be construed as a dismissal on the merits of the controversy between the parties. It is a dismissal in limine.

As none of the grounds can sustain the revision petition, the petition is dismissed with costs.