J. and K. Bank Ltd. vs Abdul Samad Chiloo

Syed Bashir-ud-Din, J.—The Appellant Bank, allowed respondent to open a Current Account and granted him over draft facilities at its

Anantnag Branch. On his alleged failure to clear the overdraft taken by him, the Bank adjusted the outstanding amount against the deposits in

respondent's Saving Bank Account in Amirakadal Branch of the Bank. Respondent filed a Civil suit for recovery of Rs. 19,451.86 which was

decreed by District Judge Bank Cases, Srinagar on 30-4-1997, Against this judgment and decree, Civil 1st. Appeal 69/1997 was preferred in the

High Court. This appeal was disposed of by an order dated 8-10-97 by learned single Judge as under :--

Nemo for petitioner.

On previous date last and final opportunity was given to counsel for the petitioner to reply the queries raised by the Court in the matter.

The learned counsel for the petitioner has neither reported back nor caused his appearance and even does not care to reply the queries which

were raised by the Court.

So this Court has come to the conclusion that revision which has been filed by the petitioner is misconceived and is being dismissed.

The appellant has filed this Appeal against the above impugned order. The appeal has been admitted to hearing. In terms of Registry's report

respondent is deemed served and is accordingly set ex parte, The counsel submits that as the Appeal has been dismissed on merits in absence of

the parties and the appeal is termed and treated as Civil Revision in the Appeal, therefore, a substantial question of law arises whether an appeal

can be dismissed on merits in absence of the Appellant or his counsel and in case such an order is bad, if the Appeal can be re-admitted to hearing

in terms of Order 41, Rule 19, C.P.C.

Upon hearing counsel, we find that the case Involves substantial question of law, whether a Civil 1st Appeal can be dismissed on merits in

absence of Appellant and whether such Appeal can be re-admitted to hearing in terms of Order 41, Rule 19, C.P.C.

The learned counsel for the Appellant has been heard on these legal aspects of the case, with reference to relevant facts.

The impugned order reproduced as above, shows that the appeal is dismissed on merits rather than for default in appearance/failure to

prosecute the Appeal. Not only so, the appeal is in the order is described as the Civil Revision, rather than an appeal. However, we find that the

Court could have either adjourned the appeal or dismissed it for default of Appellant's appearance and non-prosecution. The option of disposing

of the Appeal on merits could have been ordered after hearing the parties or in any case the Appellant and not otherwise, Even explanation to Rule

17, Order XLI, CPC specifically provides that the Court may for appellant's default in appearance dismiss the Appeal but nothing in the Rule ""shall

be construed as empowering the Court to dismiss the appeal on merits.

A Division Bench of this Court in Ghulam Qadir and Others Vs. Sikander and Others, . examined the law in detail on the subject and has come

to the conclusion that an appeal cannot be dismissed on merits in absence of parties or in any case in absence of appellant or his counsel. The re-

admission of the Appeal for hearing and decision on merits can be done under the enabling provisions of Order 41, Rule 19, C.P.C.

On the above principles, we are in agreement with their Lordships and answer the questions raised accordingly.

In result, we set aside the impugned order under Appeal. This Appeal is allowed and Civil 1st. Appeal 69/97 is re-admitted to hearing.

However, having regard to the facts and circumstances of the case, we are awarding Rs. 1000/- costs to be deposited by the Appellant-Bank in

the Lawyers Welfare Fund within two weeks.

Disposed of as above.