Om Prakash and Another vs New Okhala Industrial Development Authority and Others

V.K. Shukla, J.—Present second appeal has been filed against the judgment and decree dated 30.8.2007 passed by the Additional District Judge (II), Gautambudh Nagar in Civil Appeal No. 8 of 2006 (Om Prakash and Anr. v. New Okhala Industrial Development Authority and Ors.), arising out of the Original Suit No. 901 of 1993.

Brief background of the case is that plaintiffs-appellants filed suit for permanent injunction, registered as Original Suit No. 901 of 1993 in the court of Civil Judge (Senior Division), Ghaziabad contending therein that plaintiffs-appellants are owner in possession of the land in dispute and have got their construction thereon. In the said suit, New Okhala Industrial Development Authority filed written statement and disputed the claim of plaintiffs-appellants. In the said case, evidence was led from both the sides and thereafter Original Suit No. 901 of 1993 was dismissed by the trial court vide judgement and decree dated 4.4.2006. Aggrieved against the said judgment and decree, plaintiffs-appellants filed Civil Appeal No. 8 of 2006 (Om Prakash and Ors. v. New Okhala Industrial Development Authority and Ors.). Appeal in question was admitted on 21.4.2006 and judgment and decree passed by lower court was stayed. Thereafter, matter was taken up on different dates and was adjourned on one ground or other. On 16.8.2007 matter was taken up, and on the said date, arguments on behalf of the defendants-respondents were heard and for hearing of arguments to be advanced on behalf of the plaintiffs-appellants 17.8.2007 was the date fixed. On 17.8.2007 no one has appeared when the case has been called out on behalf of the plaintiffs-appellants to argue the matter, and then matter was adjourned and date was fixed for 22.8.2007. On 22.8.2007 case in question was called out, no one appeared on behalf of appellant and on account of court being over burdened, judgment in question could not be delivered. On 30.8.2007 matter was taken up and when no one had entered appearance then judgment was delivered on merit and decree was prepared on 5.9.2007. Thereafter an application was moved under Order 41 Rule 19 C.P.C. for recalling of the said order and same was also rejected and order passed, has been upheld, at this juncture present second appeal has been filed.

On presentation of second appeal in question, record of the court below was summoned and thereafter record in question has been received, and with the consent of the parties, present second appeal has been taken up for final hearing/disposal. Sri Faujdar Rai, advocate, learned Counsel for the plaintiff-appellant contended with vehemence that under the provision of Order 41 Rule 17 of C.P.C. when on the date fixed for hearing, appellant has not appeared when the appeal in question was called out for hearing, then at the said juncture, court hearing the appeal has certainly been empowered to pass order dismissing the appeal but said appeal can be dismissed for want of prosecution and cannot be dismissed on merit, and as such in the present case appellate court has clearly transgressed and over stepped its jurisdiction in deciding the appeal on merits and as such judgment and decree passed by the lower appellate court below is liable to be set aside.

Countering the said submission, learned Counsel representing Noida Development Authority on the other hand contended that in the present case, plaintiff-appellants deliberately absented themselves and as such court below rightly proceeded to decide the appeal on merit, as such judgment and decree passed by the court below is liable to be affirmed, as appellate court is empowered to take decision on merit, as provided for under Order 41 Rule 11(4) C.P.C. in this background second appeal deserves to be dismissed.

Under CPC Code, 1908, Order 41 deals with appeal from original decree and Order 41 starting from Rule 9 onwards deals with procedure on admission of appeal. Order 41 Rule 9 provides for registration of memorandum of appeal. Order 41 Rule 11 deals with the power of appellate court to dismiss the appeal without sending notice to lower court. At this juncture relevant provisions dealing with procedure on admission of appeal and procedure on hearing Order 41 Rules 11,12,13,14,16,17 and 19 are being extracted below:

Power to dismiss appeal without sending notice to Lower Court: (i) The Appellate Court after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.

(2) If on the day fixed or any other day 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.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

(4) Where an Appellate Court, not being the High Court, dismisses an appeal under Sub-rule (1), it shall deliver a judgement, recording in brief its grounds for doing so, and decree shall be drawn up in accordance with the judgment.

Day for hearing appeal:-(1) Unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal. (2) Such day shall be fixed with reference to the current business of the Court.

Appellate Court to give notice to Court whose decree appended from:- (Rep. by the CPC (Amendment) Act, 1999 (46 of 1999), Section 31 (w.e.f. 1.7.2002)

Publication and service of notice of day for hearing appeal:-(1) Notice of the day faxed under Rule 12 shall be affixed in the Appellate Court-house, and a like notice shall be sent by the Appellate Court to the Court from whose decree the appeal is preferred, and shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer; and all the provisions applicable to such summons, and to proceedings with reference to the service thereof, shall apply to the service of such notice.

(2) Appellate Court may itself cause notice to be served:- Instead of sending the notice to the Court from whose decree the appeal is preferred, the Appellate Court may itself cause the notice to be served on the respondent or on his pleader under the provisions above referred to.

(3) The notice to be served on the respondent shall be accompanied by a copy of the memorandum of appeal.

(4) Notwithstanding anything to the contrary contained in Sub-rule (1), it shall not be necessary to serve notice of any proceeding incidental to an appeal on any respondent other than a person impleaded for the first time in the Appellate Court, unless he has appeared and filed an address for the service in the Court of first instance or has appeared in the appeal.

(5) Nothing in Sub-rule (4) shall bar the respondent referred to in the appeal from defending it.

16 Right to begin: (1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal.

(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply.

Dismissal of appeal for appellant''s default: (1) Where on the day fixed , or on any other day 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 sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.

(2) Hearing appeal ex parte- Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.

Re-admission of appeal dismissed for default- Where an appeal is dismissed under Rule 11, Sub-rule (2) or Rule 17 (***), the appellant may apply to the Appellate Court for the 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 or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

Scheme of things provided would go to show that appellate court is fully empowered to dismiss the appeal without sending notice to the lower court and such exercise can be carried out by the appellate court after fixing a day for hearing, the appellant or his pleader and if he appears on that day may dismiss the appeal. Opportunity of hearing has been provided to appellant and to counsel for the appellant and on said hearing fixed, only if he appears then he has to be heard in the matter otherwise appellate court is free to dismiss the appeal. Similar exercise can be carried out on the different date also as is provided under Sub-rule (2) of Rule 11 of Order 41, if on the date fixed or to any other adjourned date, when appellant chooses not to appear, when matter is called for hearing. Sub-rule (4) of Rule 11 of Order 41 provides without sending notice to lower court and without issuing notice to respondents of appeal, appellate court is fully empowered to dismiss the appeal and only obligation cast upon is that it shall deliver a judgment, recording in brief its grounds for doing so. High Court is exempted from indicating reasons. The situation is that at the stage of Rule 11 of Order 41 opportunity has to be given to the appellant or his counsel, and if he appears on the day when the matter has been fixed for being taken up, and if the appellant or his counsel chooses not to appear on the date, then courts are not precluded from dismissing the appeal on merits. Rule 12 of Order 41 comes into play in case appellate court has chosen not to dismiss the appeal under Rule 11, then in that event the date has to be fixed for hearing of the appeal, keeping in view of current business of court. Under Rule 14 of Order 41 notices are to be issued to the respondents or on his pleader, in the manner provided for the service on a defendant of a summons to appear and answer. Appellate Court itself has to ensure service of notice. Under Rule 16 of Order 41 appellant has been conferred right of audience in support of appeal. Thereafter, if the court does not dismiss the appeal at once, then the Court has to hear the respondents against the appeal, and in such case appellant is entitled to give reply the same. Rule 17 of Order 41 comes into play when on the day fixed, or on any other day to which the hearing adjourned, the appellant does not appear when the appeal is called for hearing, the court is entitled to make an order that the appeal be dismissed and to this provision, explanation has been inserted by Section 87 of U.P. Act No. 104 of 1976, which provides that nothing in this sub-rule shall be construed as empowering the court to dismiss the appeal on the merits. Sub-rule (2) of Rule 17 of Order 41 on the other hand provides that when the appellant appears and the respondent does not appear, the appeal shall be heard ex-parte. Rule 18 of Order 41 deals with the situation when notice is not served on account of depositing cost. Rule 19 of Order 41 talks of re-admission of appeal dismissed for default. Where an appeal is dismissed. Under Rule -11, Sub-rule (2) or Rule 17, the appellant may be apply to the Appellate Court for re-admission of the appeal and on being proved that he was prevented by any sufficient cause from appearing when the appeal was called for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

Scheme of thing is thus clear that under Rule 11 of Order 41 opportunity of hearing has to be provided to the appellant and in case appellant has chosen not to appear, then court is empowered to dismiss the appeal on merit, which is known as pre-admission, or as preliminary hearing and even can dismiss the same for non prosecution. Once preliminary hearing has been done in the matter, appeal in question has been admitted, record of the court below has been summoned and date has been fixed for hearing, then under order 41 Rule 17(2), explanation added to the same clearly prohibits dismissal of the appeal on merits.

In the present case lower appellate court has taken note of the fact that in-spite of time being fixed for hearing, appellants'' counsel has not turned up. Once appellants'' counsel has chosen not to turn up, then Appellate court could have dismissed the appeal for want of prosecution, as explanation added to Sub-rule (2) of Rule 17 of Order 41 clearly prohibits the court from taking decision on the merits of appeal. In the absence of defendants, once appellants was present, the court was fully entitled to proceed ex-parte and decide matter on merits, but once appellants counsel was not present for whatever reason may be, then after admission of appeal and after calling of the record and giving notice to respondents, appellate court is not at all competent to dismiss the appeal on merits and only authority which court has at the said point of time is to dismiss the appeal for want of prosecution.

Consequently, in the facts of the present case, judgment and decree which has been passed on 30.8.2007 by the Additional District Judge (II), Gautam Budha Nagar dismissing the appeal on merit can not be approved of same being in breach of provision as contained in explanation of Sub-rule (2) of Rule 17 of Order 41 C.P.C. and as such same is being aside. Matter is remitted back to the lower appellate court for taking fresh decision. Office is directed to ensure that record, which have been summoned by the lower court is sent back forthwith. Appeal in question shall be decided within next two months from the date of presentation of certified copy of the judgment to the appellate court. It is made clear that no unnecessary adjournment shall be granted and appeal be decided strictly in accordance with law.

With these observations, present second appeal is allowed.