(1) This is an appeal against the order passed by the Additional Chief Judge, City Civil Court, whereby he rejected the application made under O. 41 R. 21 C. P. C. The learned Judge in an appeal against the money decree preferred by the defendant set aside the judgment of the trial Court without hearing the plaintiff and in his absence, it would appear that the appeal was posted for hearing on 18-3-1960 when arguments of the appellant were heard in part. Thereafter the case could be heard only on 30-3-1960 and 31-3-1960. On these occasions, it is only the appellant who addressed his arguments as can be gathered form the notes paper. There is no reference to the fact that the appellant had closed his arguments and the respondent was heard on merits to any extent. The next date for hearing the appeal was fixed as 1-4-1960. On that day, both parties were absent. The court then declared that the appeal is closed and posted the case for judgment on 6-4-1960. As the judgment was not ready on 6-4-1960, the next date fixed was 12-4-1960 on which date the appeal was allowed and the trial Court's decree was reversed. The plaintiff-respondent thereafter moved the court under O. 41, R, 21 C. P. C. to rehear the appeal as he and his lawyer, for reasons shown in the affidavit, could not enter appearance on the date fixed i.e., 104-1960. The appellant contested this petition on the basis that he was heard in full and the arguments of the respondent too were heard in part and even though the Court had offered opportunity to the advocate appearing for the respondent later on, the advocate did not care to come and address his arguments and therefore there is no sufficient ground for re-hearing the appeal.
(2) In my opinion, the appeal was not disposed of in due accordance with law. When it is clear from the notes paper that even the appellant was heard only part and on the date fixed for continuation of arguments, he, as also the respondent were absent, the only course the court below ought to have adopted is one prescribed in R. 17 of O. 41 C. P. C. Of course, unlike O. 9 R. 3 C. P. C. there is no express provision in O. 41, which may cover cases where both the parties are absent. Rule 17 of O. 41 however is specific that on the date when the appeal is called on for hearing the appellant does not appear, the court may make an order that the appeal be dismissed. The word 'may' will show that the court would either dismiss the appeal or adjourn the same for a future date. There is no warrant that even in his absence, it will pronounce on merits. In any circumstances it could not pronounce against the respondent without hearing him on merits or in the absence of the appellant. An ex parte order against the respondent could be made under sub-rule (2) of R. 17 of O. 41 C. P. C., if the appellant appeared and the respondent in spite of notice does enter appearance or avail the opportunity of being heard. The respondent no doubt was absent that day, but the appellant also was absent. The procedure adopted by the lower appellate court is contrary to the provisions of O. 41, C. P. C. Even though the appellant was not present on the date fixed for hearing, and no adverse order could be passed against the respondent as he was not called upon to argue before the appellant himself had concluded his argument., the court decided the appeal against him. The order therefore is wholly ultra views. However since it may be deemed to be an ex parte order as against the plaintiff-appellant herein, his application for rehearing the appeal ought to have been allowed. The learned Additional Chief Judge has rejected his application without any sufficient grounds. I therefore allow this appeal, set aside the order of the Additional Chief Judge, City Civil Court and direct that the appeal No. 53 of 1959 be restored to its original number and re-heard and disposed of in accordance with law. The costs of this appeal will abide the result in the main appeal.
JH/MRG/ R. G. D.
(3) Appeal allowed.