Sk. Azad Ali vs Sri Tapan Kumar Roy

This appeal will be heard on the following substantial question of law. Whether the Learned First Appellate Court was justified in disposing of the appeal on merit in the absence of the appellant without adhering to the directions contained in Order 41 Rule 17 of the Code of Civil Procedure, or not?

Lower court records need not be called for.

Since the respondent is represented by his learned advocate, service of notice of appeal upon the respondent is dispensed with.

Immediately after we admitted this appeal for hearing under the provision of Order 41 Rule 11 of the Code of Civil Procedure, we were requested by the learned counsel appearing for the parties to dispose of the appeal itself on merit by dispensing with the requirement of filing paper books in this appeal.

We are informed that all relevant papers necessary for disposal of the appeal are annexed to the stay application.

Under such circumstances, we have decided to dispose of the appeal itself on merit.

This second appeal is directed against the judgement and decree dated 11th April, 2016 passed by the Learned Additional District Judge, 3rd Court at Tamluk, Purba Medinipur in Other Appeal No. 8 of 2014 affirming the judgement and decree dated 18th December, 2012 passed by the Learned Civil Judge (Junior Division), Additional Court at Tamluk in Other Suit No. 50 of 2007, at the instance of the defendant/appellant.

The plaintiff''s suit for eviction of the defendant from the suit premises was decreed by the learned Trial Court against the defendant ex parte. The defendant was directed to quit and vacate the suit premises as mentioned in the "ka" schedule of the plaint and deliver vacant possession to the plaintiff within two months from the date of passing of the decree failing which the plaintiff was given at liberty to execute the decree as per provision of law. The defendant was further directed to pay the rental due of the suit premises as mentioned in schedule "ka" of the plaint and pay Rs.30/- per day as damages from 1st September, 2006 till the date of delivery of possession of the suit premises to the plaintiff.

Being aggrieved by and dissatisfied with the said judgement and decree of the learned Trial Court, the defendant preferred an appeal before the learned First Appellate Court. The said appeal was dismissed on merit by affirming the judgement and decree of the learned Trial Court in the absence of the defendant/appellant.

The legality and/or propriety of the said judgement and decree of the learned First Appellate Court is under challenge in this second appeal.

The manner in which the appeal was decided by the learned First Appellate Court is contrary to the provision contained in Order 41 Rule 17 of the Code of Civil Procedure. The said provision makes it abundantly clear that in the absence of the appellant, the appeal court cannot decide the appeal on merit. The only course which was left open to the appeal court, was to dismiss the appeal for default as per the provision contained in Order 41 Rule 17 of the Code of Civil Procedure.

In the instant case, the learned First Appellate Court without adhering the provision contained in Order 41 Rule 17 of the Code of Civil Procedure, dismissed the appeal by entering into the merit of the said appeal.

Since such impugned judgement and decree was passed without adhering to the mandate of Order 41 Rule 17 of the Code of Civil Procedure, we allow this appeal by setting aside the said judgement and decree of the learned First Appellate Court.

We thus, request the learned First Appellate Court to dispose of the appeal on merit in accordance with law as early as possible preferably by the end of March, 2017 without giving any unnecessary adjournment to any of the parties.

Both the appeal and the application are thus, disposed of.

Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.