Mohan Lal Shukla vs Noor Jahan and Others

A.N. Varma, J.—Against the judgment and decree dated 13.8.2002, passed in Regular Suit No.261 of 1987, whereby the suit filed by the respondents for ejectment was decreed, the appellant filed an appeal before the District Judge being Civil Appeal No.79 of 2002. From the perusal of the record it appears that several dates were fixed for the arguments in the appeal but the same could not be heard. Finally it was heard on 3.1.2006 and 15.5.2006 was the date fixed for delivery of judgment. Before the judgment could be delivered, the Presiding Officer was transferred. The appeal thereafter was taken up on 17.8.2006, on which date the appeal was dismissed on merits in the absence of the appellant. An application purported to be under Order 41 Rule 19 CPC was preferred for recall of the said judgment which was dismissed by the Additional District Judge (Court No.1) Unnao, vide its judgment and order dated 20.1.2007, against which the instant appeal has been filed.

I have heard Shri S.K. Mehrotra, learned counsel for the appellant as well as Shri Mohd. Arif Khan, learned Senior Advocate, assisted by Shri Mohd. Saeed, counsel for the respondents.

Shri Mehrotra submitted that in view of the fact that on the date fixed the appellant admittedly was not present, therefore, the Court below could not have proceeded to decide the appeal on merits. According to him, in the absence of the appellant the learned Court below ought to have dismissed the appeal in default as is provided under Order 41 Rule 17 of the Code of Civil Procedure.

In support of his case he placed reliance upon a decision rendered by the Apex Court in 1996 (6) Supreme Court Cases 62, Abdul Rahman and Others v. Athifa Begum and Others and 2007 (25) LCD 492, Supreme Court, Desa Singh v. Ajit Singh and Others.

Shri Khan, in opposition argued that the appeal was pending since 2002 and despite several dates having been fixed for hearing, the appellant in order to delay the disposal of the appeal deliberately, with no just cause, avoided hearing. The Court, thus, left with no other alternative, proceeded. According to him, since merits of the case have been considered, therefore, no prejudice has been caused to the appellant and, therefore, no error has been committed by the Court below and as such the judgment and order passed by the appellate Court does not suffer from any illegality or infirmity.

Order 41 Rule 17 reads as follows:

�Dismissal of appeal for appellant''s default (1) Where on the day fixed, or on any other date 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 in this subrule shall be construed as empowering the Court to dismiss the appeal on the merits.]

As would appear from the perusal of the aforesaid Provision where on the date fixed or on any other date to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Court may make an order with regard to dismissal of appeal. Explanation appended to the said Rule further provides that nothing shall empower the Court to dismiss the appeal on merits. Admittedly, on the date fixed the appellant was not present and the Court below proceeded with the case and decided on merits.

In Abdul Rahman and Others (supra) the Hon''ble Supreme Court in categorical terms observed that proceeding on merits by the Court in the absence of the appellant''s counsel amounts to transgressing the Provision of Order 41 Rule 17 CPC. The relevant observation of the Apex Court is reproduced hereinunder:

�Here, the High Court has recorded that all relevant aspects of the matter have been taken into account in order to hold that there was no available ground for interference with the decision of the trial Court. This was an exercise against which the High Court should have been well advised not to indulge in at the stage or (sic of) Order 41 Rule 17 CPC. The Explanation to Order 41 Rule 17(1) CPC says that nothing in this subrule shall be construed as empowering the Court to dismiss the appeal on the merits. The High Court having transgressed that limit, we have, therefore, no option but to allow the appeal, set aside the impugned judgment and order of the High Court and put the matter back to its file for fresh disposal in accordance with law. Ordered accordingly. No Costs.�

Same proposition has been laid down in Desa Singh case (supra). The Apex Court observed as follows:

�As the factual scenario which is almost undisputed goes to show, there was no representation when the matter was taken up before the High Court. Because of circumstances beyond the control of the appellants, there was no appearance and the matter was decided against them. Normally, when the appellant is not represented, the High Court would dismiss it for default and not go into the merits in detail. That is precisely what has not been done in the present case.�

In view of the aforesaid proposition the Appellate Court, in dismissing the appeal on merits in the absence of appellant, traversed beyond the scope of Order 41, Rule 17 CPC. The judgment and order passed by the appellate Court, thus, cannot be allowed to be sustained.

In the result, the appeal is allowed. The judgment and order dated 20.1.2007 as well as order dated 17.8.2006 are hereby set aside. The Additional District Judge (Court No.1) Unnao shall restore the appeal to its original number and shall decide the same afresh after affording opportunity of hearing to the parties concerned.

Looking to the fact that the matter is pending since 2002, the appellate Court shall decide the appeal expeditiously say within a period of fifteen days from the date a certified copy of this order is served on it. No adjournment shall, however, be allowed by the appellate Court at the behest of either parties.

(Appeal allowed)