K. Lahiri, J.
1. This is an application under Section 115 of the Code of Civil Procedure, for
short, 'the Code', directed against the Order dated 21-12-81 passed by the District Judge, Dibrugarh, in Title Appeal No. 1 of 1981, dismissing the appeal of the petitioner-defendant for appellant's default.
2. In the Title Appeal preferred by the petitioner, Shri L. Hazarika, a just engaged lawyer filed an application on 21-12-81, the date on which the appeal was posted for hearing, praying that he required 15 days time to prepare and argue the case. It was stated in the petition that, Shri Biman Barua, Advocate who had filed the appeal, left the charge of the case expressing his inability to argue the case on 21-12-81 on some personal ground. Shri L. Hazarika, learned counsel categorically stated that he was engaged only on 21-12-81 and he could not prepare the appeal after going through the papers. The prayer was turned down and the appeal was dismissed for non-prosecution, when learned counsel Shri Hazarika fairly conceded that he was not in a position to argue the appeal on that date.
3. It emerges clear that Shri Biman Barua, Advocate had left the charge of the case and the petitioner-appellant had to engage Shri L. Hazarika to argue the appeal. Under this thorny circumstance, it is hardly possible to blame the appellant-petitioner, as he did everything possible to engage a lawyer had left the charge of the appeal. (Sic) Similarly, by no means it can be said that the prayer of Shri Hazarika to grant him a short adjournment was unjust or unreasonable. In fact, learned District Judge did not reach the conclusion that either the appellant was blame-worthy or learned counsel Shri L. Hazarika had asked for adjournment without rhyme or reason. There is no inkling in the impugned order as to why the appeal could not be adjourned for a short period. As learned counsel informed the court that he was not prepared to argue the case on that date, learned Judge dismissed the appeal holding that the appellant did not appear when the appeal was called on for hearing.
4. It is thus seen that the appellant did everything within his means to engage a lawyer for the appeal. As the lawyer who had been engaged by him suddenly expressed his inability to argue the case the only alternative left for the appellant-petitioner was to engage another counsel. The petitioner did so, as such, no
negligence can be attributed to the appellant. Similarly, Shri L. Hazarika who was engaged by the appellant stated that he was just engaged and should be given some time to prepare the appeal and argue the same could not be held at fault nor his action praying for a short adjournment be considered unjust or unreasonable.
5. The sole question for determination is whether learned District Judge has exercised the power of dismissal acting within the limits of Order 41 Rule 17(1) of 'the Code'. Order 41 Rule 17(1) rules that 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 on for hearing, the Court may make an order that the appeal be dismissed. Whereas the Order 41 R, 17(2) provides, where the appellant appears and the respondent does not appear the appeal shall be heard ex parte. Under this circumstance, when the appellant appears but the respondent does not appear the appeal must be heard ex parte. However, Order 41 Rule 17(1) grants a discretionary power to the court, it may dismiss an appeal or it may not. Further, dismissal is not the automatic consequence if the appellant does not appear on the date of hearing. Order 41 Rule 17(1) lays down a condition precedent, namely, that the court must 'make an order' that the appeal be dismissed. As such, the court is not obliged to dismiss an appeal, it may dismiss or may not dismiss the appeal. If it decides to dismiss the appeal it must 'make an order'. It shows that an order of dismissal can be made only after making an order. In the instant case 'there is no order' holding that there was any fault on the part of the appellant to prosecute the appeal. Similarly, learned Judge did not find any fault with Shri L. Hazarika, learned counsel who was engaged on that date to argue the appeal. As such, in my opinion there was 'no order' of dismissal as envisaged in Order 41 Rule 17(1) of 'the Code'. At any rate, without holding that the appellant or his learned counsel was negligent and/or the ground for adjournment was unjustified, learned Judge should not have dismissed the appeal for default of the appellant.
6. To dismiss an appeal being a serious business, Parliament thought it fit that merely on the ground of absence of the appellant, an appeal may not be dismissed. The appellate
court must make an order, give reasons why it had to take such a calamitous action. The order must be a reasoned one. An order of dismissal of an appeal is equivalent to nonsuiting a party. As such the power of dismissal of an appeal must be based on an order holding that the court could not postpone the hearing of the appeal to some other date.
7. Be that as it may, the petition must be allowed on the authority of the decisions of the Supreme Court in Rafiq v. Munshilal (1981) 3 SCR 509 : AIR 1981 SC 1400; Goswami Krishna Murarilal Sharma v. Dhan Prakash (1981) 4 SCC 574; Smt. Lachi Tewari v. Director of Land Records AIR 1984 SC 41. In the instant case the appellant-petitioner was penalised. However, I fail to find what more could be expected of him. What more steps should he have taken in the matter to avoid his case being dismissed for default? Dealing with this aspect, in Rafiq (supra) their Lordships stated thus : --
'The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job'.
In Goswami Krishna Murarilal Sharma (supra) the same view was reiterated. Similarly in Smt. Lachi Tewari (supra) their Lordships further confirmed the view. In the instant case the just engaged lawyer could not be held responsible for asking a short adjournment. It is not possible to comprehend what more steps should the appellant have
taken in the appeal, to avoid the order of dismissal. In the instant case the appellant had done everything within his power to effectively participate in the appeal. He was rest assured that he was not to do anything in the appeal as the lawyer would look after his interest. There was no short-fall or laches on the part of the appellant-petitioner. Learned District Judge also could not find any fault with the appellant. It is difficult to pinpoint any laches on the part of Shri L. Hazarika, in seeking adjournment. His prayer was quite rational. Under these circumstances the impugned order of dismissal of appeal cannot be sustained.
8. I am constrained to hold that the impugned order has occasioned a miscarriage of justice. Learned Judge did not 'make an order' containing any reason why he held that the appellant was absent and/or he was negligent and there was imperative necessity for dismissing the appeal, on that date without granting a short adjournment In any view of the matter the order cannot be sustained in view of the law laid down by the Supreme Court in Rafiq (AIR 1981 SC 1400) (supra); Goswami Krishna Murarilal Sharma (1981 (4) SCC 574) (supra) and Smt. Lachi Tewari (AIR 1984 SC 41) (supra). Mr. A. K. Choudhury, learned counsel for the opposite party fairly concedes to this position. Mr. Choudhury submits that the opposite party suffered a lot in view of the delay in disposal of the case and prays that the revision may be allowed but the opposite party may be awarded costs. Under these circumstances I set aside the impugned order with cost of Rs. 200/- payable by the petitioner to the opposite party. I direct the parties to appear on 25-10-1984 before the learned District Judge, Dibrugarh. On that date learned District Judge shall fix a date of hearing and make every endeavour to dispose of the appeal as expeditiously as possible.