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Goswami Krishna Murarilal Sharma v. Dhan Prakash And Others
Factual and Procedural Background
The plaintiff-respondent filed a suit concerning a house and a shop. The learned Additional District Judge, Meerut, decreed the suit, declaring that the house in dispute was a public temple and that the shop in dispute was property of a public trust. The court further declared that the defendants were not suitable persons to be trustees of the public trust, directed that a scheme for administration of the public trust be prepared, and that new trustees be appointed.
The appellant-defendant challenged this decree by filing First Appeal No. 286 of 1961 in the High Court of Judicature at Allahabad. When the appeal came up for hearing, the appellant’s counsel, Shri Banerjee, stated that he had no further instructions and sought leave to withdraw from the case. The High Court permitted his withdrawal and immediately dismissed the appeal on the ground that the appellant had failed to appear and prosecute the appeal.
The appellant thereafter filed an application for restoration of the appeal by recalling the dismissal order. A further application was also made for restoring the appeal and hearing it on merits. This latter application was dismissed on April 23, 1979. The appellant then approached the Supreme Court by way of special leave. Special leave was granted, and with the consent of the parties, the Supreme Court decided to dispose of the matter by a speaking order.
Legal Issues Presented
- Whether the High Court was justified in dismissing the appellant’s first appeal for non-appearance and failure to prosecute, immediately upon permitting the appellant’s advocate to withdraw at the time of hearing.
- Whether the High Court was justified in refusing to restore the appeal and hear it on merits after dismissing it for default in appearance.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rafiq v. Munshilal, (1981) 2 SCC 788 | The decision was relied on to support the view that an admitted appeal should be heard on merits and that the appellant should be given an opportunity to engage another advocate rather than suffer dismissal merely due to the advocate’s non-participation or withdrawal. | The Supreme Court, relying on this precedent, held that the appellant’s admitted appeal in the High Court ought to have been heard on merits after giving the appellant an opportunity to engage another advocate, and used this as a basis to set aside the High Court’s dismissal for default and its refusal to restore the appeal. |
Court's Reasoning and Analysis
The Supreme Court examined the brief order of the High Court and noted that it did not disclose the reasons why the appellant’s counsel, Shri Banerjee, sought leave to withdraw at the last minute and in the absence of the appellant. The reasons for withdrawal were known only to the advocate and could not be ascertained from the record.
The Court emphasized that, in appellate proceedings, where an advocate has been engaged, the personal presence of the parties is generally not required. Ordinarily, the court hears learned counsel on both sides and arguments are addressed with reference to the trial court record. Personal attendance of the parties at the hearing of an appeal is usually not insisted upon.
In this context, the Court found it difficult to understand how, upon granting the advocate’s request to withdraw and recording his withdrawal, the High Court could straightaway dismiss the appeal on the ground that the appellant in person was not present and had failed to prosecute the appeal. The Court found it even more disquieting that the High Court thereafter refused the appellant’s application for restoration of the appeal and for its hearing on merits.
Without elaborating further, the Supreme Court stated that, relying on its earlier decision in Rafiq v. Munshilal, it was of the view that the appellant’s appeal, which had been admitted by the High Court, should have been heard on merits after affording the appellant an opportunity to engage another advocate. On this basis, the Court concluded that the High Court’s dismissal order and its refusal to restore the appeal were unsustainable.
Holding and Implications
Holding: The Supreme Court allowed the appeal and set aside the High Court’s order dismissing the first appeal on the ground of the appellant’s absence and failure to prosecute. The Court directed the High Court to restore the appeal to its original number and to dispose of it on merits. The appellant was given liberty to engage an advocate to appear and take effective steps for the final disposal of the appeal. There was no order as to costs. The Court further directed that status quo with regard to possession and the proceedings before the lower court, as on the date of its order, be maintained until disposal of the appeal.
Implications: The immediate consequence is that the appellant’s first appeal in the High Court is revived and must be decided on merits after giving the appellant an opportunity to be represented by counsel. The dismissal for default based solely on the appellant’s personal absence, following counsel’s withdrawal, stands invalidated. The opinion confines itself to correcting the procedural course in this particular matter and does not discuss any broader legal implications beyond reliance on the cited precedent.
D.A Desai, J.— Special Leave granted.
2. With the consent of the parties, we decided to dispose of the appeal by a speaking order. The appellant-defendant filed first Appeal No. 286 of 1961 in the High Court of Judicature at Allahabad against the judgment and decree of the learned Additional District Judge, Meerut by which the suit of the plaintiff-respondent was decreed declaring that the house involved in the appeal is a public temple and the shop involved in the dispute in the suit was property of the public trust. A further declaration was given that the defendants were not suitable persons to be trustees of public trust and therefore a scheme for the administration of the public trust be prepared and new trustees be appointed.
3. When this appeal, preferred by the appellant in the High Court came up for hearing, Shri Banerjee learned Counsel for the appellant stated that he had no further instructions in the matter and sought leave to withdraw from the case and on being so permitted he withdrew and then the Court proceeded to dismiss the appeal for failure of the appellant to appear and prosecute the appeal.
4. From a short cryptic Order of the High Court, it is difficult to call out why Shri Banerjee, learned Advocate, who appeared for the appellant sought leave to withdraw at the last minute and that too in the absence of the appellant. Assuming, if Mr Banerjee made out cogent reasons for withdrawal, it is difficult to appreciate how while granting the request of Mr Banerjee and recording his withdrawal from appeal, the Court straight away proceeded to dismiss the appeal for failure of the appellant to appear and to prosecute the appeal. It appears that thereafter the appellant filed an application for restoring the appeal by recalling the order dismissing it for the failure of the appellant to appear and prosecute the appeal.
5. The appellant made another application for restoring the appeal and hearing it on merits. The same was dismissed on April 23, 1979.
6. It appears that the appellant had engaged his advocate and at the hearing of the appeal ordinarily the presence of the parties is generally redundant. Learned Advocate appearing on either side is heard by the Court and the arguments are directed with reference to the trial court's record. Ordinarily, the personal presence of the parties is not even insisted upon at the hearing of the appeal.
7. Now, the appellant had engaged his advocate who withdrew, the reasons for withdrawal being known only to the learned Advocate and not ascertainable from the record. It is difficult to appreciate how the Court straight away proceeded to dismiss the appeal on the ground that the appellant in person is not present. It is all the more disquieting how the High Court declined to grant the application for restoration of appeal and to hear it on merits. Without dilating upon this point, relying on the decision of this Court in Rafiq v. Munshilal (1981) 2 SCC 788 we think that the appellant's appeal which was admitted by the High Court should have been heard on merits after giving an opportunity to engage another advocate.
8. We, accordingly allow this appeal and set aside the Order of the High Court dismissing the appeal on the ground that the appellant was absent at the hearing of the appeal and failed to take steps to prosecute the appeal. We direct that the High Court should restore this appeal to its original number and proceed to dispose of the appeal on merits. The appellant is at liberty to engage his advocate to appear and take effective steps for the final disposal of the appeal. In the circumstances of the case, there will be no order as to costs. Status quo with regard to possession and the proceedings before the lower court as on today till the disposal of the appeal.
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