Dina Nath vs Mohan Singh and Another

A.S. Anand, C.J.—The short, though meaningful, question which requires consideration in this revision petition is as to 'what is the effect of

the dismissal of an appeal, in default of appearance by the appellate Court, on the order which had been appealed against?'

The back-drop of facts in which this revision has been arisen and which are not in dispute may first be noticed in brief :

The petitioner along with some others filed a suit for declaration with consequential relief of injunction against the respondents and the same is

pending disposal in the Court of learned Sub-Judge Reasi. Along with the suit, the petitioner and others filed an application for grant of an ad

interim injunction restraining respondent No. 1 from receiving the CHARAT OF SHRI VAISHNO DEVI DARBAR. On 4-5-1983, the learned

Sub-Judge, Reasi, granted the ad interim injunction, as prayed for, but the order was made subject to the objections from the other side.

Respondent No. 1 filed an application on 6th May, 1983, seeking vacation of the ex parte ad interim injunction. It appears that before the

application for vacation of the ex parte ad interim injunction was taken up for consideration, respondent No. 1 filed an appeal against the order

dated 4-5-1983 before the learned District Judge, Udhampur, who vide order dated 28th May, 1983, admitted the appeal and stayed the

operation of the impugned order dated 4-5-1983. The appeal, it appears, came up for hearing but on 16-8-1983, the same was dismissed in

default of appearance of the appellant or his counsel and on the same date the stay order granted by the District Judge was also vacated. After the

dismissal of the appeal, in default of appearance, respondent No. 1 appeared before learned Sub-Judge, Reasi, and submitted that the application

for ad interim injunction be heard and decided on merits and further stated that his application for vacation of the ad interim injunction be treated as

objections to the application of the plaintiff. The petitioner and others thereupon moved an application on 30th of Sept., 1983, before the learned

Sub-Judge, Reasi, submitting therein that with the dismissal of the appeal filed by respondent No. 1 by the appellate Court on 16-8-1983, the ad

interim injunction order dated 4-5-1983 had merged into the order of the learned District Judge dated 16-8-1983 and had become absolute,

pending the disposal of the main suit. To that application objections were filed by respondent No. 1 and after the objections were filed, the learned

Sub-Judge, Reasi, vide order dated 10-12-1983, dismissed the application and directed that the stay application (the application seeking ad

interim injunction) be listed for hearing. It is against that order that the petitioner-plaintiff has come up in revision.

Mr. Sapolia, learned counsel for the petitioner, has submitted that since the ex parte order of injunction passed by learned Sub Judge Reasi

which was an appealable order, was appealed against, the dismissal of the appeal on 16-8-1983, had the effect of putting a seal of finality on the

ad interim injunction dated 4-5-1983, and, therefore, it was not open to the trial Court to re-hear the stay application on merits. Learned counsel

further argued that the dismissal of an appeal in default of appearance had the effect of dismissal of the appeal in the absence of proof and in

support of his submission, reliance has been placed by the learned counsel on Thakur Sukhpal Singh Vs. Thakur Kalyan Singh, .

Mr. S. D. Sharma learned counsel for respondent No. 1, to whom notice had been issued to show cause against the admission of the petition

has, on the other hand, contended that since the dismissal of the appeal in default of appearance was no adjudication by the appellate court on the

merits of the order appealed against, the effect of the dismissal remained intact and it was open to respondent No. 1 to agitate the matter before

the trial Court since the order of the trial Court itself was subject to objections by him. It is submitted that the dismissal in default of an appeal was

no adjudication on merits and, therefore the trial Court was justified in hearing the stay application on merits after the appeal filed by respondent

No. 1 was dismissed in default of appearance.

It is well settled, in view of the Full Bench Judgment in Astral Traders v. Maji Mohammad Shaban Dar, Civil Revision No. 56 of 1977,

reported in 1982 KLJ 324 : (AIR 1982 J&K 124), that an ex parte ad interim injunction is as such appealable as an order of temporary injunction

passed after hearing both the parties. It is, therefore, open to an aggrieved party that instead of filing objections to the ex parte ad interim

injunctions, challenge the said order in appeal under Order 43, Rule l(r), C. P. C. There is no room left for the argument that an appeal can lie only

against an ad interim injunction if the same has been passed after hearing both the sides and not otherwise. Where the aggrieved party chooses to

file an appeal against the ad interim injunction instead of filing objections before the trial Court and obtains an order, on merits, from the appellate

Court, the order of the trial Court merges into the order of the appellate Court and to that extent and that extent alone, the trial Court ceases to

have jurisdiction to deal with the ad interim application. However, if the party against whom the ad interim injunction has been issued chooses to

file objections, then the aggrieved party still has right to file an appeal after the ad interim order is confirmed or varied by the trial Court after

hearing both sides. It shall of course not be open to a party who without filing objections, files an appeal and obtains an adverse order on merits,

from the appellate Court to re-agitate the matter before the trial Court in respect of the ad interim application, because the principle of merger

would be fully applicable in that case. The position, however, would be different where the appeal is disposed of by the appellate Court, not on

merits, but default of appearance because in that event there is no adjudication by the appellate Court on the merits of the order appealed against.

The dismissal for default under those circumstances cannot be said to put a seal of finality on the merits of the case particularly where the order

appealed against was subject to the objections of the order side. It is settled law that a Court has no power to dismiss an appeal on merits when

the appellant is not present in the Court either personally or through his counsel. The Court can either adjourn the appeal or dismiss it for default of

appellant's appearance (see in this connection with advantage 1980 KLJ 433 : (AIR 1981 J&K 30). It, therefore, must follow that the dismissal of

an appeal in default cannot be equated with the dismissal of the appeal on merits. It is only when there has been an adjudication on mertis by the

appellate Court, that the principle of merger comes into play.

So far as AIR 1953 SC 146, on which reliance is placed by Mr. Sapolia, is concerned, the same is not only distinguishable on facts but from the

ratio of that judgment, it cannot possibly be concluded that a Court can dispose of an appeal on merits in the absence of the appellant or his

counsel. In the Supreme Court case, the appeal had been dismissed by the High Court for default not n the absence of appellant or his counsel but

in the presence of the appellant who had expressed his inability to argue the appeal himself and his request for engaging a counsel had been turned

down on the ground that it was not bona fide. Their Lordships in that context observed that where the appellant was unwilling to argue the appeal,

though he was present, that appeal could not be dismissed in default of appearance and the dismissal of the appeal amounted to dismissal for

default of proof. That observation is, therefore, applicable to the peculiar facts of that case only. It is not permissible to take out a word or a

sentence from a judgment of the Supreme Court, divorced from the context in which it was used, and treat the same as law on the subject when

the specific controversy was not raised or involved in the controversy before the Supreme Court. The use of expression 'in default of proof' by the

Supreme Court has no relevance to cases which are dismissed in default of appearance of the party or his counsel. The Supreme Court judgment,

therefore, cannot advance the case of the petitioner and cannot be treated as an authority for the proposition that the dismissal of an appeal in

default of appearance tantamounts to dismissal of the appeal on merits.

Considered in the light of the aforesaid observation, I am clearly of the view that since the dismissal of the appeal was in default of appearance,

no adjudication on merits of the case took place before the District Judge and, therefore, the learned Sub Judge, Reasi, was perfectly justified in

directing the parties to address arguments on the stay application to which objections had been filed. The effect of the dismissal of the appeal vide

order dated 16-8-1983 was not that the order appealed against had either been approved or confirmed by the appellate court. The impugned

order, under the circumstances is a perfectly sound order which has been passed in the interest of justice and calls for no interference in exercise of

the revisional jurisdiction of this Court.

The order neither suffers from a jurisdictional defect nor from any illegality or irregularity. The revision petition, is, therefore, dismissed.

It, shall, however, be open to the petitioner to seek orders from the trial Court regarding the rendition of accounts by respondent No. 1 or for

imposing such other conditions as the trial Court may deem just and fit on respondent No. 1 regarding the collection of Chartal.