Deo Dutta Singh And Others v. Ram Naresh Singh And Others Opposite Parties.

Untwalia, C.J:— This miscellaneous judicial case was filed by the petitioners under Order 41, Rule 19 of the Code of Civil Procedure, hereinafter called the Code, for restoration of Second Appeal 28 of 1967, and revision of the judgment and order dated the 25th January, 1969 passed therein by Mahapatra, J. The said learned Judge was not a member of thin court when the miscellaneous judicial case came up for hearing before G.N Prasad, J., on 5-1-71. The appellants or their counsel had not appeared when the second appeal was taken up for hearing on 25-1-69, the respondents' counsel had appeared. Instead of dismissing the appeal for default Mahapatra, J., cursorily examined its merits and finding no merit in it dismissed it as such. Before G.N Prasad, J., Mr. S.C Ghose, learned counsel for the petitioners relied upon a Bench decision of this court in Mosafir Mahton… v. Mt. Bachani…., AIR 1963 Pat 1. But the correctness of that decision was doubted in view of the decision of the Supreme Court in Sukhpal Singh v. Kalyan Singh, AIR 1963 SC 146 followed by a Full Bench of the Allahabad High Court in Babu Ram v. Bhagwan Din, AIR 1966 All 1 (FB) and hence the case has come up before us on reference by the learned Single Judge.

2. The petitioners' case is that the property in dispute measured 15.35 acres of agricultural lands although the area mentioned in the judgment of this Court dated 25-1-69 is more. The suit was dismissed by the learned Subordinate Judge of Palamau on 1-8-61, but on appeal by the plaintiffs his decision was reversed by the learned District Judge of Palamau by his judgment dated 12-10-66. The petitioners preferred the second appeal from the judgment and decree of the District Judge. Second Appeal 28 of 1967 came up for the first time for hearing on a Saturday which was a working day. The appeal had been filed through Mr. Kumar Sidheshwar Prasad Singh but later on the petitioners did not take work from him for certain reasons and engaged Mr. M.K Varma, another Advocate. He was entrusted with the brief and put in charge of the case. On the 24th January, 1969 when Mr. M.K Varma was in the High Court, he received a message at 12 O'clock that his brother was seriously ill at his village home near Dalmianagar, which village is about 80 miles from Patna. He at once drove in a car to his village home with his clerk Shri Kamta Prasad. There, due to exhaustion, he was himself laid down with cold and fever. He came back to Patna on the following Monday and found that Second Appeal 28 of 1967 was listed on the daily list for hearing before the Hon'ble Mr. Justice Mahapatra and it was disposed of ex parte in absence of the Advocate for the appellants. A counter-affidavit has been filed on behalf of the opposite parties 1 to 5 who were plaintiff respondents in the second appeal. They do not accept the version given by the petitioners in their application which is affidavited by Shri Kamta Prasad, clerk of Mr. M.K Varma. An affidavit in reply has also been filed. After hearing learned counsel for the parties, I have come to the conclusion that Mr. Kumar Sidheahwar Prasad Singh was present in the High Court but not in the court of Mr. Justice Mahapatra. Since the petitioners were not taking work from him, he had left all interest in the matter and did not attend to it when the appeal was called on for hearing. I am also satisfied that Mr. M.K Varma was compelled to proceed to his village home suddenly with his clerk without making any arrangement for his cases. The second appeal came up on the daily list on the 25th January, 1969. If the application under Order 41, Rule 19 of the Code is maintainable then, in my opinion, sufficient cause has been made out for restoring the appeal to its file by treating the order of Mr. Justice Mahapatra as, in effect and substance, an order dismissing the appeal for default. But the question is whether the judgment and order passed by a learned single Judge of this court on 25-1-69 had the force of a decree or it had the effect of dismissing the appeal for default. In that case the relevant question which falls for determination is whether the learned single Judge had power and jurisdiction to dismiss the appeal on merits in default of the appellants. If the order on merits was without jurisdiction, it had obviously the effect of dismissing the appeal on default. In that event the application under Order 41, Rule 19 of the Code will be maintainable. But if the learned Judge had the power to dismiss the appeal on merits then the remedy under Rule 19 will not be available to the petitioners and the judgment and decree of this court cannot be interfered with in this miscellaneous judicial case.

3. It is undisputed that the relevant Rules of Order 41 of the Code to which reference will be made hereinafter were applicable to the procedure of the second appeal in view of the, provision contained in Order 42, Rule 1 of the Code. When the appellate court does not dismiss an appeal under Rule 11 of Order 41 then it has to fix a day for its hearing under Rule 12(1). The power to adjourn the hearing is not expressly provided for in any Rule but it has to be culled out from Rule 16 which says:—

“(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.”

4. Rule 30 of Order 41 prescribes as to when and where the judgment in appeal is to be pronounced. The appellate court after hearing the parties or their pleaders and referring to any part of the proceedings whether on appeal or in the court from whose decree the appeal is preferred, to which reference may be considered necessary, is to pronounce judgment thereafter. What are to be the contents of the judgment is provided for in Rule 31. There is, therefore, no difficulty where parties ob their pleaders are present and are heard. When the appellant appears and the respondent does not appear, the appeal is to be heard ex parte in accordance with sub-rule (2) of Rule 17. It may be pointed out that Rule 15 provides—

“The notice to the respondent shall declare that, if he does not appear in the Appellate Court, on the day so fixed, the appeal will be heard ex parte.”

5. When the appeal is heard ex parte, the respondent can apply under Rule 21 for its re-hearing. Similarly, if the appellant does not appear when the appeal is called on foe hearing, the appellate court may make an order that the appeal be dismissed under Rule 17(1). In the Code of Civil Procedure of 1882 the word used in the corresponding provision was ‘shall’ but in spite of the change in the phraseology, almost consistently by all the High Courts the view has been taken that when the appellant does not appear when the appeal is called on for hearing, the court may either adjourn it or dismiss it for default, it has no power to dismiss the appeal on merits (Vide Musaliarakath Muhamad v. Manavikrama, AIR 1923 Mad 13; Maung Than Ge v. Maung Po Thin, AIR 1925 Rang 96; Basudev v. Bideshi, AIR 1929 Rang 11 (2); Taher Sheikh Chowkidar v. Otaruddi Howladar, AIR 1929 Cal 475; Digendra Chandra v. Radha Ballav, AIR 1953 Assam 191; Kawleshwar Singh v. Raghubir Singh, AIR 1961 Pat 299; Kundha Singh v. Punjab State, AIR 1962 Punj 82 and Mosafir Mahton… v. Mt. Bachani…., AIR 1963 Pat 1).

6. A learned single Judge of this court had taken a contrary view in Daulat Singh v. Kesho Prasad Singh, AIR 1921 Pat 325 but this was overruled by the Bench in AIR 1963 Pat 1.

7. In Allahabad High Court the view taken has not been consistent. A Bench of the Allahabad High Court in Nasir Khan v. Itwari, AIR 1924 All 144 following the Madras case reported in AIR 1923 Mad 13 fell in line with the other High Courts. But a learned Single Judge in Mohammadi Hussain v. Mt. Chandro, AIR 1937 All 284 expressed the view that when the appellant's pleader is not prepared to argue the appeal after his prayer for adjournment has been rejected then even if the appeal is dismissed for default, it has the force of a decree; court should in such cases proceed in the manner laid down by Order 41, Rules 30 and 31 of the Code. But a Bench of the Allahabad High Court did not approve this view in Mathura Das v. Narain Das, AIR 1940 All 248. The opinion expressed by Bennet, J., delivering the judgment on behalf of the Bench is that in a case where the appellant or his pleader is not prepared to address the court, the court may pass an order of dismissal for default but such an order does not necessarily mean that the appeal is dismissed for default of appearance; in such circumstances the order means that the appeal is dismissed for default of proof. Earlier, however, the same Bench had expressed the view in Chimman Lal v. Zahur Uddin, AIR 1938 All 548 that in a case where the appellant or his pleader does not appear or appears but does not argue, the appeal can be decided on merits. The earlier Bench decision in AIR 1924 All 144 was not followed and the view of the Single Judge in AIR 1937 All 284 seems to have been approved.

8. In my considered judgment, When the appellant or his counsel does not appear when the appeal is called on for hearing, the case is squarely covered by the provision of Order 41, Rule 17(1) of the Code. The court has no power to dispose of the appeal on merits. If it were to be held that the court in absence of the appellant can examine the merits of the appeal then two difficulties stare in the face. The first is that in such a case when the appeal is dismissed, the appellant will have no remedy of applying for its restoration under Rule 19 while when the appeal is heard ex parte and allowed in absence of the respondent, the respondent gets a remedy on its re-hearing under Rule 21. In an equal and similar situation, it would be placing the appellant and respondent in two different positions, the respondent getting an opportunity of establishing sufficient cause while the appellant being debarred from an opportunity of establishing such fact however strong the case may be. The other difficulty is that if the appeal is fit to be allowed then the respondent will be called upon to be heard, and this will be going against the spirit of Rule 16.

9. The point may create some difficulty when the appellant or his advocate appears, applies for time but does not get it and thereafter is unable to argue. If it is a pure case of refusal to argue, the matter may be different but I should have thought that expressing inability to argue should make the case one of non-appearance of the appellant. The Supreme Court seems to have taken the view in AIR 1963 SC 146 that in such a situation it will be a case of refusal to argue, and even in such a case the appellate court is not bound to go into the merits of the appeal and decide it but it may dismiss it. What will be the effect of such dismissal is not very clear. The facts of the case of Thakur Sukhpal Singh decided by the Supreme Court are these. In the Madhya Bharat High Court the appellant's first appeal came up for hearing on a certain date. Learned counsel for the appellant stated that he had no instruction to represent him. The appellant to application for adjournment was rejected. He was not prepared to address the court. The High Court, therefore, dismissed the appeal following the decision of the Allahabad High Court in Mathura Das's case, AIR 1940 All 248. Treating this as a decree, the decision was challenged before the Supreme Court on grant of special leave to appeal. The question posed for determination was—

“Whether the appellate court is bound to decide an appeal on merits on the basis of the material on the record when the appellant appears at the hearing but does not address the Court.”

10. The decision of Niamatullah, J., in Mohammadi Hussain's case in AIR 1937 All 284 was not approved. It overruling by a Division Bench in AIR 1940 All 248 seem a to have been referred to with approval. Thinking that the Supreme Court Case lays down that in a case of default the appellate Court may dismiss an appeal for default or proceed to dispose it of on merits, the Full Bench of Allahabad High Court in AIR 1966 All 1 has obliterated the distinction between a case of non-appearance of the appellant or his counsel and a case where he appears but for one reason or the other does not address the court. I am unable to subscribe to this view. My considered opinion is that the decision of the Supreme Court does not in any way disturb the consistent line of authorities of the various High Courts given with reference to Order 41, Rule 17(1) of the Code that in a case of non-appearance of the appellant simpliciter the Court has no power to dispose of an appeal on merits. The Supreme Court was not concerned with a case of this kind. In the whole of the judgment there is no reference to Order 41, Rule 17 nor is there any discussion in respect of the change of the word “shall” in the old Code to ‘may’ In the new Code. The ratio of the Supreme Court case, in my opinion, is that in a case where the appellant is present but does not argue, the appeal may be dismissed for default, or may be disposed of on merits. If it is dismissed for default, I would venture to think that the dismissal would be under Order 41, Rule 17, treating it a case of non-appearance, or it may be said that the dismissal would be under the inherent power. The third view is also possible to be taken as was taken by the Allahabad High Court to AIR 1940 All 248 that the dismissal is for failure of the appellant to show that the judgment appealed from is fit to be upset by the appellate Court. If, however, in a situation like that, the appeal is disposed of on merits, undoubtedly it will have the effect of a decree of the appellate Court. When the learned Judge delivering the judgment on behalf of the Full Bench in AIR 1966 All 1 felt confronted with the situation of disapproval by the Supreme Court of the judgment of the learned single Judge in Mohammadi Hussain's case, AIR 1937 All 284 which was overruled by the Division Bench in Mathura Das's case, he merely said in paragraph 37 of the judgment at page 8 that it is not necessary to discuss this case. Even after noting at page 9 that the Supreme Court has referred With approval the Bench decision in Mathura Das's case, the learned Judge proceeded to say in paragraph 41 that—

“According to this decision, therefore, the Court may act under Order XII, Rule 30 if the appellant and his pleader are not prepared to address the Court This unpreparedness to address as I have said above may consist in refusal or inability to address or in the fact that the appellant is absent, and, to my mind in all these cases the Court has the power to dismiss the appeal for ‘default of proof’ that the judgment appealed against is erroneous, is to dismiss the appeal on merits.”

11. With utmost respect I am unable to subscribe to this view. The unpreparedness to address cannot be equated with the absence of the appellant in the former case one of the three situations referred to above by me may arise but in the latter, there is no doubt in my mind, the appellate Court has no power to dispose of the appeal on merits; it can either adjourn it or dismiss it for default, so that the appellant may get an opportunity to establish sufficient cause, if any, under Order 41, Rule 19 of the Code. Having given my most anxious consideration to the point at issue, I reiterate what I have said in AIR 1961 Pat 299 and what has been said by a Bench of this Court, of which I was a member, in AIR 1963 Pat 1. Whatever difficulty may be experienced in dealing with a case of the appellant or his pleader expressing his inability to argue amounting to refusal to argue, I have not the slightest difficulty in applying the law laid down by this Court in the two cases, just referred to above, to the facts of the instant case which was a case of non-appearance of the appellants or their counsel when the appeal was called out for hearing. In this case the learned Judge had no power or jurisdiction to dismiss the appeal on merits as he proceeded to do. The effect of his order would be its dismissal in default and the remedy under Order 41, Rule 19 of the Code is available to the petitioners. I have already indicated that sufficient cause has been made out in this case. The application is, therefore, allowed, the judgment and order of the learned Single Judge of this Court dated 25-1-69 in Second Appeal 28 of 1967 are set aside and the appeal is restored to its file. But one thing must be made clear that the second appeal had been dismissed against respondent 7 who has been impleaded as opposite party 7 in this M.J.C application for non-compliance with certain peremptory order of the Bench. The restoration of the second appeal cannot and does not mean its restoration against respondent 7 also. By an order dated 28-10-68 it was held by a learned Judge of this Court that the whole appeal had not become incompetent because of its dismissal against respondent 7. Its effect will be considered at the time of hearing of the second appeal which is being restored by this judgment and order. The M.J.C application, therefore, as already stated, is allowed subject to the observations made. There will be no order as to costs.

Sarwar Ali, J.:— I agree.

12. Appeal partly allowed.