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
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
