Jainuddin vs Badiadka Coop. Stores Ltd.

Pareed Pillay, J.—I.A. 1368 and I.A. 1369 of 1982 were filed under Order XLI Rule 19 of the CPC before the Additional District Court, Tellicherry to restore A.S. Nos. 334 and 333 of 1979. The petitions were dismissed by the District Judge.

The contention of the respondents is that as the appeals were disposed of on merits, the petitions for restoration of the appeals are not maintainable and the remedy of the appellants lies elsewhere. Though the District Judge found that the petitions are maintainable he held that it cannot be allowed in view of the paucity of sufficient ground.

Order XLI Rule 17(1) CPC provides that where on the day fixed or any other day to which the hearing is adjourned, the appellant does not appear when the appeal is called on for hearing, the court may make any order that the appeal will be dismissed. Explanation states that nothing in the sub-rule shall be construed as empowering the court to dismiss the appeal on merits. The question to be considered is whether an appeal disposed on merits without hearing the appellant''s advocate can be restored for rehearing. Order XLI Rule 19(1) CPC provides that where an appeal is dismissed under Rule 17 the appellant may apply to the appellate court for 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 the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. In Saiammal v. Mannagatri 1978 (2) MLJ 277, it is held as follows:

The dismissal of the appeal in the absence of the appellants and their counsel cannot be equated to the dismissal of the appeal on merits, but it must brought within the ambit of Order XLI Rule 17 CPC, namely, the order must be equated to an order of dismissal for default. If it is so, against such an order a remedy under Order XLI Rule 19 of the CPC is available and in the present case, the court below is declining to entertain the application filed under Order XLI Rule 19 has filed to exercise jurisdiction vested in it.

As the appeals were dismissed though on merits without hearing the appellants'' advocate it cannot be strictly construed as decided on merits as the appellant''s advocate was not heard at all and hence it must be brought within the ambit of Order XLI Rule 17 of the CPC. Against such dismissal of the appeal the remedy lies in an application under Order XLI Rule 19 CPC.

We have next to consider as to whether sufficient grounds were made out to allow the petitions. The appeals were posted for hearing on 4.12.1982. That was an agreed posting. But on that day the advocate for the appellants did not appear before the court. It would appear that sufficiently indulgence was shown to the appellants in the matter of hearing of the appeal by the lower appellate court. As the appeals were posted to 4.12.1982 sufficiently in advance the contention of the appellants that the advocate at Kasargode received the telegram only on 4.12.1982 and therefore he could not appear before the court does not merit serious consideration. The lower appellate court has given sufficient reasons to reject the petitions.

I do not find any reason to interfere with the impugned orders. In the result both the C.M.As. are dismissed.