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Monday, April 21, 2014

Or.41, rule 17(2) and rule 19 - Appeal and Cross appeal - absence of appellant - heard both appeals exparte and dismissed the appeal and allowed the cross appeal - High court dismissed all petitions including delay petition as no sufficient reasons furnished - Apex court held that No appeal suit be disposed of on merits in the absence of appellant as per Or.41, rule 19 but any appeal should be disposed off exparte when the respondent not turned up - any how the sufficient reasons not furnished for condoning the delay and as such High court rightly dismissed the application to restore - Apex court too dismissed the all civil appeals = Harbans Pershad Jaiswal (D) By Lrs. …………..Appellants Vs. Urmila Devi Jaiswal (D) By Lrs. …………..Respondents = 2014 (April.Part)judis.nic.in/supremecourt/filename=41435

 Or.41, rule 17(2) and rule 19 - Appeal and Cross appeal - absence of appellant - heard both appeals exparte and dismissed the appeal and allowed the cross appeal - High court dismissed all petitions including delay petition as no sufficient reasons furnished - Apex court held that  No appeal suit be disposed of on merits in the absence of appellant as per Or.41, rule 19 but any appeal should be disposed off exparte when the respondent not turned up - any how the sufficient reasons not furnished for condoning the delay and as such High court rightly dismissed the application to restore - Apex court too dismissed the all civil appeals =

The plea of the appellants was that in the absence of  their  counsel,
appeal filed by them could not have been decided  on  merits  and  the  only
course open to the Court was to dismiss the appeal in default,  as  that  is
the only permissible course of action provider in Order XLI Rule 17  of  the
Code of Civil Procedure in such an eventuality. This argument, however,  did
not impress the High Court. A perusal of the order of the High  Court  would
also demonstrate that the High Court was not  impressed  with  the  argument
that non-appearance of the counsel for the appellants was bonafide or  there
was sufficient cause shown for the counsel’s absence.  In  fact,  a  perusal
of docket proceeding in appeal of the  respondents  indicated  that  another
Single Judge had heard common  arguments  in  both  appeals  on  an  earlier
occasion and even the judgment was reserved.  However,  owing  to  the  fact
that  he  was   subsequently   appointed   as   Chairman,   Andhra   Pradesh
Administrative Tribunal and could not  deliver  the  judgment,  the  appeals
were directed to be listed for hearing afresh.  The record was  not  showing
as to  who  was  represented  appellants  at  that  time  and  advanced  the
arguments. Therefore, the  appellants  could  not  feign  absence  of  their
earlier counsel Ms. B.Shalini Saxena. In any case,  as  pointed  out  above,
the High Court found that there was  no  sufficient  cause  shown  for  non-
appearance of Ms. B.Shalini Saxena.=

Order 41 Rule 17(2) of the CPC which reads as under:

           “Hearing appeal ex parte: Where the appellant  appears  and  the
           respondent does not appear, the appeal shall be heard ex parte.”
In so far as appeal of  the  respondent  is
concerned, the same has been allowed exparte as nobody  appeared  on  behalf
of the appellants.    This course of action was available to the High  Court
 as sub-rule (2) of Order XLI Rule 17 categorically permits it.  Though  the
appellants moved application for setting aside  this  order,  the  same  was
dismissed on the ground that no reasonable  or  sufficient  cause  for  non-
appearance was shown. Therefore, this part of the order of  the  High  Court
is without blemish and is not to be interfered with.  Appeal  their  against
is dismissed.

17.   In so far as appeal of the appellants  against  grant  of  preliminary
decree in respect of Schedule B is concerned, it could not have  been  heard
on merits in the absence of the appellant. The Court could only  dismiss  it
in default.

18.    Having said so, the question that arises is that even if  the  appeal
was to be dismissed in default, whether that order warranted to be  recalled
on application made by the appellants. As is clear from the reading of  Rule
19 of Order XLI, the appellants were supposed to show sufficient  cause  for
their non-appearance. The High Court has given categorical finding  that  no
such cause is shown. The learned senior counsel for the appellants  did  not
even address on  this  aspect  or  argued  that  the  reason  given  by  the
appellant in the application filed before the High Court for  non-appearance
amounted to sufficient cause and the order of the High  Court  is  erroneous
on this aspect.  As a result, even if we treat the order of the  High  Court
deciding the appeal of the appellants on merits was not proper  and  proceed
further by substituting it with the order  dismissing  the  said  appeal  in
default, we do not find any  reason  to  recall  the  order  dismissing  the
appeal in default.

19.   As a consequence, these appeals fail and are hereby dismissed.

2014 (April.Part)judis.nic.in/supremecourt/filename=41435
SURINDER SINGH NIJJAR, A.K. SIKRI
                                                   [REPORTABLE]

                 IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION

                 CIVIL APPEAL No.4656/2014
            (arising out of S.L.P.(Civil) No.5875/2007)

Harbans Pershad Jaiswal (D) By Lrs.              …………..Appellants

                       Vs.

Urmila Devi Jaiswal (D) By Lrs.                           …………..Respondents

WITH

C.A. No.4657/2014 @ SLP(Civil) No.5874/2007
C.A.No.4658/2014 @ SLP(Civil) No.18141/2009
C.A.No.4659/2014 @ SLP(Civil) No.18142/2009


                               J U D G M E N T



A.K.SIKRI,J.

1.    Leave granted.

2.    In all these appeals identical question of law is  raised,  which  has
arisen for consideration in the same background facts in these cases,  which
are between the same parties.  There is thus, a commonality of parties,  the
dispute as well as question of law in all these cases and  for  this  reason
these appeals were heard analogously and  are  being  disposed  of  by  this
common judgment.

3.    The factual details giving rise to the filing of these appeals do  not
need a large canvass, and  our  purpose  would  be  served  in  drawing  the
picture with the following relevant facts:

4.    One Late Shiv Pershad Jaiswal was the owner  and  possessor  of  House
No.11-2-378, Habeed Nagar, Hyderabad as well as House No.4-114 to  117  with
appurtenant  land  admeasuring  about  Ac.2.05  guntas  at   Madchal,   R.R.
District. After his death, the respondent herein (daughter of  Shiv  Pershad
Jaiswal) filed the Suit, being  O.S.1287  of  1985,  in  City  Civil  Court,
Hyderabad  claiming1/3rd  share  in  the  aforesaid  properties  which  were
described in Schedule A  and  B  to  the  plaint.  In  the  said  Suit,  she
impleaded her brother and mother as the defendants. During the  pendency  of
the Suit, the mother died which led to the amendment in the  Suit  filed  by
the respondent claiming ½ share  in  the  aforesaid  properties.  Additional
relief of rendition  of  accounts  was  also  prayed  for,  as  the  brother
(appellant No.1) was collecting the  rent  from  the  tenants  from  certain
portion of the Suit properties. By way of amendment, appellant  No.2  herein
(wife of appellant No.1) was also impleaded in whose favour her  mother  had
bequeathed property by executing  a  Will  dated  6.7.1983.   The  Suit  was
contested by the defendants by filing written statement.  Number  of  issues
and additional issues were framed and both the parties  led  their  evidence
in support of their respective cases.   After  hearing  the  arguments,  the
learned City Civil Court  passed  the  preliminary  decree  dated   5.8.1993
holding that the respondent as well as appellant No.1 (herein brother)  were
entitled to half  share  each  in  respect  of  property  at  Madchal,  R.R.
District  (Schedule  A  property).   Suit  qua  Habeeb  Nagar  (Schedule   B
property) was dismissed. The Trial Court also  directed  the  respondent  to
proceed against the appellants for rendition of  accounts  at  the  time  of
passing of final decree for the rent realized by appellant  No.1  after  the
death of their mother respondent  on 25.9.1985.

5.    The respondent  was  not  satisfied  with  the  aforesaid  preliminary
decree vide which she was held not entitled to any share in the  Schedule  A
property. She, accordingly, filed the appeal against  the  said  portion  of
the preliminary decree, before the High Court of Andhra Pradesh.   Likewise,
the appellant also filed appeal against other  portion  of  the  preliminary
decree whereby the respondent  was  held  entitled  to  half  share  in  the
Schedule B  property.  These  appeals  were  listed  for  final  hearing  on
29.9.2005. However, counsel for the appellants Ms. Shalini  Saxena  did  not
appear in the Court on that day. The High Court heard the  counsel  for  the
respondent  on  the  merits  of  the  appeal  and  rendered  judgment  dated
29.9.2005 whereby appeal of the respondent  was  allowed  and  that  of  the
appellants was dismissed.

6.    As per the appellants, they came  to  know  about  the  said  ex-parte
judgment and order dated 29.9.2005 sometime in the year  2006.  Accordingly,
the appellants moved four applications with following description:

      (i)   C.C.C.A. M.P. No.294/2006 for the leave of  the  High  Court  to
engage their counsel to represent their case,

      (ii)  C.C.A. M.P. SR No.4416/2006 with the  prayer  to  dispense  with
the filing of the certified copies of decree and  judgment  and  also  typed
copies of judgment and decree in C.C.C.A. No.4 of 1994 dated 29.9.2005.

      (iii) C.C.C.A.M.P. (SR) No.4417 of 2006  praying  the  High  Court  to
condone the delay of 158 days in filing the application  for  setting  aside
the ex-parte decree and judgment dated 29.9.2005 in C.C.C.A. No.4 of 1994.

      (iv)  C.C.C.A.M.P.(SR) No.4419 of 2006 for setting aside  the  exparte
decree and judgment dated 29.9.2005 in C.C.C.A.No.4 of 1994.

7.    The plea of the appellants was that in the absence of  their  counsel,
appeal filed by them could not have been decided  on  merits  and  the  only
course open to the Court was to dismiss the appeal in default,  as  that  is
the only permissible course of action provider in Order XLI Rule 17  of  the
Code of Civil Procedure in such an eventuality. This argument, however,  did
not impress the High Court. A perusal of the order of the High  Court  would
also demonstrate that the High Court was not  impressed  with  the  argument
that non-appearance of the counsel for the appellants was bonafide or  there
was sufficient cause shown for the counsel’s absence.  In  fact,  a  perusal
of docket proceeding in appeal of the  respondents  indicated  that  another
Single Judge had heard common  arguments  in  both  appeals  on  an  earlier
occasion and even the judgment was reserved.  However,  owing  to  the  fact
that  he  was   subsequently   appointed   as   Chairman,   Andhra   Pradesh
Administrative Tribunal and could not  deliver  the  judgment,  the  appeals
were directed to be listed for hearing afresh.  The record was  not  showing
as to  who  was  represented  appellants  at  that  time  and  advanced  the
arguments. Therefore, the  appellants  could  not  feign  absence  of  their
earlier counsel Ms. B.Shalini Saxena. In any case,  as  pointed  out  above,
the High Court found that there was  no  sufficient  cause  shown  for  non-
appearance of Ms. B.Shalini Saxena.

8.    It is, further, pointed out by the  High  Court  that  the  respondent
herein was the appellant in  one  of  the  appeals  C.C.A.No.4/94   and  the
appellants herein were the respondents in that appeal. In  so  far  as  that
appeal filed by respondent herein is concerned, same could be heard  in  the
absence of the appellants (respondents in  that  appeal),  in  view  of  the
provision contained in Order 41 Rule 17(2) of the CPC which reads as under:

           “Hearing appeal ex parte: Where the appellant  appears  and  the
           respondent does not appear, the appeal shall be heard ex parte.”




      Since another appeal was heard along with this appeal,  that  was  the
reason for hearing both the appeals  together.  Giving  these  reasons,  the
applications filed by the appellants were dismissed and present appeals  are
filed challenging the dismissal order dated 31st July 2006.

9.    As mentioned above, the sole contention of the appellant is  that  the
appeal filed by the appellants could not have been dismissed on merits  when
the appellants remained unrepresented and at the most it could be  dismissed
only in default. In support of this contention, Mr. Sanyal,  learned  senior
counsel appearing for the appellants referred  to  explanation  appended  to
Order XLI Rule 17 of the CPC.     Mr. Sanyal also relied upon  the  judgment
of this Court in the case of Abdur Rahman & Ors.  v.  Athifa  Begum  &  Ors.
(1996) 6 SCC 62.

10.   Mr. Anup George Chowdhuri, learned senior  counsel  who  appeared  for
the respondents argued on the same line which are  the  reasons  adopted  by
the High Court in passing the impugned order.  Additionally,  he  sought  to
draw sustenance from the judgment in the case of Ajit Kumar Singh & Ors.  v.
Chiranjibi Lal & Ors. (2002) 3 SCC 609.

11.   It is a common case that the appeals filed by both  the  parties  were
governed by the procedure contained in Order XLI of the  CPC.  As  per  Rule
12, in case the appellate court does not proced to  dismiss  the  appeal  in
limine under Rule 11, it shall fix a day for hearing  the  appeal.  Rule  14
prescribes that notice of the day fixed under Rule 12 is to be given in  the
appellate court-house. Rule 16 gives the appellants a  right  to  begin  the
arguments at the time of hearing of the appeal. As per Rule 17,  the  appeal
can be dismissed in case of appellant’s default  in  appearance.  Since  the
arguments hinges around this rule, we reproduce the said rule  hereunder:

            “17. 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
         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.”




12. Where the appeal is dismissed  in  default  under  Rule  17,  remedy  is
provided to the appellant under Rule 19 for re-admission of  the  appeal  on
moving an application and showing that he was prevented  by  any  sufficient
cause from appearing when the appeal was called on  for  hearing.  Likewise,
Rule 21 gives an opportunity to the respondent to move  similar  application
for rehearing of the appeal  by  demonstrating  sufficient  cause  for  non-
appearance, if the appeal was heard  in  his  absence  and  ex-parte  decree
passed.

13.   It is clear from the above that whereas appeal can be heard on  merits
if the respondent does not appear, in case the appellant fails to appear  it
is to be dismissed in default. Explanation makes it clear that the court  is
not empowered to  dismiss  the  appeal  on  the  merits  of  the  case.   As
different consequences are provided, in case the appellant does not  appear,
in contradistinction to a situation where the respondent  fails  to  appear,
as a fortiori, Rule 19 and Rule 21 are  also  differently  worded.  Rule  19
deals with  re-admission  of  appeal  “dismissed  for  default”,  where  the
appellant does not appear at the time of hearing,  Rule  21  talks  of  “re-
hearing of the appeal” when the matter  is  heard  in  the  absence  of  the
respondent and ex-parte decree made. In Abdur  Rahman   case  (supra),  this
Court made it clear that because of non-appearance of the appellants  before
the High Court, High Court could not have gone into the merits of  the  case
in view  of  specific  course  of  action  that  could  be  chartered  (viz.
dismissal of the appeal in default above) continued in  the  explanation  to
Order XLI Rule 17, CPC and by deciding  the  appeal  of  the  appellants  on
merits, in his absence. It was held that the  High  Court  had  transgressed
its limits in taking into account all the relevant  aspects  of  the  matter
and dismissing the said appeal on merits, holding that there was  no  ground
to    interfere    with    the    decision    of    the     trial     court.


14.   In Ajit Kumar Singh case (supra)  as  well,  same  legal  position  is
reiterated as  is  clear   from  para  8  of  the  said  judgment  which  is
reproduced below:

                  “There can be no doubt that  the  High  Court  erroneously
           interpreted Rule 11(1) of Order 41 CPC. The only course  open  to
           the High Court was to dismiss the appeal for  non-prosecution  in
           the absence of the advocate for the appellants.  The  High  Court
           ought not to have considered the merits of the  case  to  dismiss
           the second appeal.(See: Rafiq v. Munshilal (1981) 2 SCC 788). The
           same view  was reiterated in Abdur Rahman v. Athifa Begum  (1996)
           6 SCC 62.”



15.   However, after taking note of the aforesaid legal position, the  Court
went further with a poser as to whether the case should be remanded  to  the
High Court for fresh disposal in accordance with the law. In  the  facts  of
that case where the findings of the first appellate court  was  recordedthat
there existed a relationship of landlord and tenant between the parties  and
since possession was taken as long back  as  in  the  year  1986  i.e.  long
before the filing of the appeal, the court refused  to  exercise  discretion
under Art.136 of the Constitution to remand of the case to  the  High  Court
for fresh disposal.  Thus, on the issue of law this judgment   supports  the
case of the appellants herein. The Court, however, deemed it proper  not  to
exercise its discretion and entertain the petition under Art.  136  for  the
aforesaid reasons.

16.   Reverting to the facts of the present case,  as  already  pointed  out
above,  the  respondent  had  filed  the  Suit  seeking  partition  of   two
properties claiming half share each in both these  properties  mentioned  in
Schedules A and B. The trial court  had  decreed  the  Suit  in  respect  of
Schedule B property but dismissed the same qua  Schedule  A  property.  Both
the parties had gone in appeal.  In so far as appeal of  the  respondent  is
concerned, the same has been allowed exparte as nobody  appeared  on  behalf
of the appellants.    This course of action was available to the High  Court
 as sub-rule (2) of Order XLI Rule 17 categorically permits it.  Though  the
appellants moved application for setting aside  this  order,  the  same  was
dismissed on the ground that no reasonable  or  sufficient  cause  for  non-
appearance was shown. Therefore, this part of the order of  the  High  Court
is without blemish and is not to be interfered with.  Appeal  their  against
is dismissed.

17.   In so far as appeal of the appellants  against  grant  of  preliminary
decree in respect of Schedule B is concerned, it could not have  been  heard
on merits in the absence of the appellant. The Court could only  dismiss  it
in default.

18.    Having said so, the question that arises is that even if  the  appeal
was to be dismissed in default, whether that order warranted to be  recalled
on application made by the appellants. As is clear from the reading of  Rule
19 of Order XLI, the appellants were supposed to show sufficient  cause  for
their non-appearance. The High Court has given categorical finding  that  no
such cause is shown. The learned senior counsel for the appellants  did  not
even address on  this  aspect  or  argued  that  the  reason  given  by  the
appellant in the application filed before the High Court for  non-appearance
amounted to sufficient cause and the order of the High  Court  is  erroneous
on this aspect.  As a result, even if we treat the order of the  High  Court
deciding the appeal of the appellants on merits was not proper  and  proceed
further by substituting it with the order  dismissing  the  said  appeal  in
default, we do not find any  reason  to  recall  the  order  dismissing  the
appeal in default.

19.   As a consequence, these appeals fail and are hereby dismissed.



                                             ……………………………..J.
                                                 (Surinder Singh Nijjar)


                                             ……………………………J.
                                                                           (
A.K.Sikri)
New Delhi,
April 21, 2014






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