1. This appeal, which came up for hearing before Mithan Lal, J. has been referred by him to a larger bench, because the question involved in it is of general importance and has not been answered by any authoritative decision.
2. Respondent No. 1 sued the appellants for partition of joint sir and khudkasht land claiming that she had a one-third share in it and that the appellants had the remaining two-third share. The suit was contested by the appellants who contended that the plaintiff-respondent was not in possession at all, that they had been in exclusive and adverse possession tor more than 12 years and that the respondent was not entitled to partition. The respondent claimed to have inherited one-third share in the laud in dispute from her father, who had died more than 25 years ago and who was a cosharer along with the appellants of the land in dispute. The appellants did not plead either that the respondent never obtained possession over her share after inheritance or that she was dispossessed after entering into possession. They vaguely pleaded that they were in adverse possession for more than 12 years. They did not deny possession of the respondents' father. They also did not plead that they were in possession from a particular time. Their counsel in his examination under Order 10, Rule 2 stated clearly that the respondent had one-third share once and retained it if not lost by adverse possession.
The trial Court framed an issue whether the appellants had acquired title by exclusive possession for more more than 12 years and answered it against them. It relied upon a judgment dated 22-2-1946 in a suit for her share in the profits brought by the respondent against the appellants which was decreed in heir favour. This judgment showed conclusively that the respondent was in possession till 1946 at least and that the appellants' possession, even if actual, was not adverse to her. The present suit instituted in January 1955 was within 12 years of that date and the trial Court decreed the suit. The appellants filed an appeal which was disposed of by an Additional Civil Judge. He fixed 5-1-1980 for the hearing of the appeal. On that date Munnu Lal Sharma, counsel for the appellants, appeared and made the vague statement that he had no instructions. The learned Civil Judge did not enquire from him what he meant by saying that he had no instructions, proceeded to hear the appeal on merits, heard the respondent's counsel's arguments and reserved judgment for 12-1-1960, on which date he dismissed the appeal holding that the appellants' possession being that of co-sharer was not adverse to the respondent and that they had acquired no title by adverse possession. On the very next day, i. e. 13-1-1960 Munnu Lal Sharma without filing a fresh vakalatnama applied for restoration of the appeal treating it as having been dismissed in default. The reasons given by him in the application were that Kali Charan, appellant and Pairokar, had fallen ill, that he had sent information by wire to his lawyer but it had not been received by him and that consequently the appeal was heard in the appellants' abbence and dismissed on 12-1-1960. The application was dismissed because the appeal had been dismissed not in default but on merits. Then they filed this second appeal. Mithan Lal, J. has reterred the whole appeal to this bench tor decision.
3. The important question that arises is whether the appeal could have been heard on merits by the learned Civil Judge or should have been dismissed in default under Order 41, Rule 17, Civil P. C.
4. The relevant provisions in the Code of Civil Procedure are contained in Order 41 and Order 3. When an appellate Court does not dismiss an appeal summarily it should fix a date for the hearing of it and notice of the date should be affixed in the appellate Court house and should be served on the respondent or on his pleader; vide Rules 12 and 14 of Order 41. Rule 17 lays down that
''where on the day fixed, or 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.'
This Court has amended this provision to read as 'where the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.'
Order 3 deals with recognized agents and pleaders. Any appearance in any Court required or authorised by law to be made or done by a party in person or by his recognised agent or by a pleader, vide Rule 1. No pleader can act tor any person in any Court unless he has been appointed for the purpose by the person by a document in writing and such appointment must be filed in the Court and 'shall be deemed to be in force until determined with the leave of the Court' by a writing signed by the petson or the pleader and filed in the Court, or until all proceedings in the suit are ended so far as regards the person; see Sub-clauses (1) and (2) of Rule 4.
5. In this case the appeal could have been dismissed by the lower appellate Court in default under Rule 17, or on merits under Rule 30 of Order 41, or could have been adjourned to another date. The word used in Rule 17, is 'may' and not ''shall', and prima facie the Legislature intended only to empower the appellate Court to dismiss an appeal in default and not to make it obligatory upon it to do so. Once the word was 'shall' and the legislature substituted it by ''may' clearly indicating its view that it intended to leave the matter at the discretion of the appellate Court. Had the word been 'shall' the appellate Court would have no option but to dismiss the appeal in default and the only consequence ot the amendment made by the Legislature was to give it discretion. The Legislature apparently did not think that an appeal should be dismissed in default regardless of all circumstances and contemplated that in some circumstances it may be more just to dispose of the appeal on merits under Rule 30 or to adjourn it. It may be that ordinarily or in a majority of cases an appellate Court will exercise the discretion in lavouc of dismissing the appeal in default, but the question isnot how the discretion is exercised ordinarily but whether the appellate Court has discretion in the matter at all or not. What order can be passed by an appellate Court if it does not dismiss the appeal in default is not laid down by the Legislature; it may be either adjourning the hearing of the appeal or hearing it on merits under Rule 30. I find no words in Rule 17 or any other rule, expressly or even impliediy, requiring adjournment and prohibitting decision on merits. Hence a decision on merits is not against any provision and can be resorted to by the appellate couit in its discretion. V.K.S. Chaudhry could not understand how an appeal can be disposed of on merits without the appellants or his counsel's being heard, but I see no anomaly or even difficulty in this. The appellate court can read the judgment appealed from and the memorandum of appeal and hear the respondent or his counsel and then can certainly decide on merits whether the appeal should be dismissed or not. If the appeal is a good one and the respondent or his counsel is unable to show any cause for its being dismissed the appellate court can certainly allow it on merits in spite of the appellant's absence. Similarly, if it finds that the grounds of appeal have no substance, it can dismiss it on merits. Orally hearing a party or his pleader is not an essential ingredient of a decision on merits and the appeal in the instant case could have been dismissed by the learned Additional Judge on merits in spite of the appellants' absence.
6. In Musaliarakath Muhammad v. Manavikrama, AIR 1923 Mad 13 the appellants' counsel applied for adjournment which was refused and informed the court that he had no instructions and would not argue the appeal and the appellate court dismissed the appeal on merits and not in default; Ayling and Odgers, JJ. held that it was illegal. They relying upon Satish Chandra v. Ahara Prasad ILR 34 Cal 403, treated the case as one of absence oi the appellant and observed at page 14 that
'under the Code preceding the present Code an Appellate Court in such circumstances had no power to go into the merits.'
and that the change of the word 'shall' to 'may' in the present Code did not make any difference. The learned Judges were led into holding that the appeal must be dismissed in default and not on merits because otherwise the appellant would be left without any remedy. In Nasir Khan v. Itwari AIR 1924 All 144, Ryves and Daniels, JJ. held that when the ap. pstlant did not appear before the appellate court and his brother appeared and applied for an adjournment the appellate court 'should not have dismissed the appeal on the merits', but should either have allowed an adjournment or have dismissed it in default and contented themselves with relying upon AIR 1923 Mad 13. I would have been bound by the decision but for the later decision of Bennet Ag. C. J. and Verma J. in Chimman Lal v. Zahur Uddin : AIR1938All548 in which the learned Judges refused to follow it and relying upon Baldeo Prasad v. Kunwar Bahadur, ILR 35 All 105 and Mohammadi Husain v. Mt. Chandra, : AIR1937All284 , held that Rule 30 applies
''only it the parties or their pleaders address the Court and in case they do not address the Court the Rule does not prevent the Court making a judgment on the merits' and that Rule 17 does not provide
'that the Court shall make an order that the appeal be dismissed.'
and leaves it at the option of the court to take that course. They repelled the suggestion that the only alternatives are dismissal in default and adjournment; by observing :
'This is not provided by the section and there is nothing to show that the Court is not allowed by the Rules to make a decree on the merits' (552).
Brown J. C. in Maung Than Ge v. Maung Po Thin, AIR 1935 Rang 96 observed at page 97 :--
'It gives no power to the Court to decide the appeal on the merits. The power of dismissing the appeal is no doubt discretionary, but if that discretionary power is not exercised the only other alternative is to adjourn the case, and to give the appellant an opportunity of being heard at a later date. If the appeal is to be decided against the appellant on the merits, then it must under the provisions of Rule 30, be decided after hearing the parties or their pleaders.'
With respect, I find it difficult to follow these observations.
I see no warrant for saying that the only alternatives before the court are dismissal in default or adjournment and that proceeding under Rule 30 is not a third alternative or that it cannot be adopted merely because one of the parties is not present. What is required under Rule 30 is not that the parties must actually be heard but that they must be heard if they are present and desire to be heard. Rule 30 certainly does not make it obligatory on a court to hear a party even though it does not desire to be heard. So many appeals are dismissed without the respondents being heard at all, it cannot be said that merely because he has not been heard the dismissal is not one under Rule 30. In Taher Sheikh v. Otaruddi : AIR1929Cal475 , Suhrawardy and Jack JJ. took the same view as Brown J. C. and observed that the word ''shall' was substituted by the word 'may' in order to give jurisdiction to the appellate court to pass such order as it thinks proper in the circumstances of the case other than that of dismissal in default and also to prevent the order of dismissal for default being appealable as an order. It was conceded by the learned Judges that discretion is conferred by Order 41, Rule 17, and that the conferment of discretion means that there is no obligation to dismiss the appeal in default in all circumstances. No guidance on the questions in what circumstances it should not be dismissed in default and what order other than that of dismissal in default should be passed in those circumstances is given by the legislature. It appears to me that once it is held that discretion has been granted it should not be fettered by any such hard and fast rule that if the appeal is not dismissed in default it can only be adjourned. There are no words used by the legislature from which any fetter on the power of the court to pass any order other than that of dismissal in default can be inferred. When the legislature has in its wisdom left the matter at the discretion of the court, it would amount to judicial legislation if some letters were applied by reading into Rule 17 words deliberately avoided by the legislature.
Ram Labhaya. A. C. J., in Digendra Chandra v. Radha Ballav AIR 1953 Assam 191 simply relied upon the cases of AIR 1924 All 144, : AIR1929Cal475 and : AIR1937All284 and dissented from Daulat Singh v. Kesho Prasad Singh AIR 1921 Pat 325. Ranawat J., in Shri Krishna v. Cirdharilal, AIR 1955 N U C (Raj) 123 took the same view because he thought that an appeal can be decided on merits only under Rule 30 and only if the parties or their counsel have been allowed an opportunity of being heard. With great respect it may be pointed out that an opportunity is given to an appellant to be heard when he is informed of the date of hearing of the appeal and not by enforcing his attendance and that, if he is absent, hearing the appeal on merits cannot be said to be a hearing without his being given an opportunity of being heard. I agree with the learned Judge that what Rule 30 requires is that an opportunity be given to the parties to be heard and to hear them if any wish to be heard and not that if the parties are not heard whatever be the reason, the appeal cannot be decided on merits at all. KanhaiLal v. Naubat Rai, ILR 3 All 519 and Zainab Begam v. Manawar Husain Khan, ILR 8 All 277 were decided under old Rule 17, which made dismissal in default obligatory and are not applicable after the amendment of the rule.
7. The view that I take is supported by ILR 35 All 105, : AIR1938All548 , AIR 1921 Pat 325, : AIR1937All284 , O. M. Chiene v. Sita Ram : AIR1940All310 (which follows the cases of Mohammadai Husain, : AIR1937All284 and Mathura Das v. Narain Das, : AIR1940All248 , Balram Das v. Harakh Chand : AIR1949All754 and Sukhpal Singh v. Kalyan Singh : 2SCR733 . In the case of Baldeo Prasad, ILR 35 All 105 the appellant was present in person and was refused adjournment to procure the attendance of his pleader and Tudball and Muhammad Rafique, JJ., held that the Court should have decided the appeal on merits instead of dismissing it for want of prosecution. They observed at page 107 : 'It was necessary for him under the circumstances to consider the grounds of appeal and to decide the case on the merits'. In Mohammadai Husain's case, : AIR1937All284 the appellant's pleader wanted time to prepare the appeal, but his application for adjournment was refused and Niamat Ullah, J., held that 'after refusing to adjourn the case the lower appellate Court was bound to decide the appeal before it' and that 'a Court is not entitled to dismiss the appeal for want of prosecution only because the appellant... or his pleader .... is for any reason unable to argue the appeal'. In : AIR1940All248 Bennet and Verma, JJ., held that when the appellant or his pleader, is not prepared to argue the appeal the Court can dismiss the appeal on the ground of default or proof and that such dismissal does not fall under Rule 17, and dissented from, : AIR1937All105 . In the case of Sukhpal Singh : 2SCR733 the Supreme Court said that an appellate Court is not bound to decide the appeal on merits and not that it cannot do so. If an appellate Court cannot decide the appeal on merits the Supreme Court would have said so and not merely that it is not bound to do so. No question of being bound can arise at all if there is no power at all.
8. In the result I am of the opinion that Order XLI, Rule 17 permits an appellate Court to follow the procedure of Rule 30 and dismiss an appeal on merits even though the appellant is absent, provided he has had reasonable notice of the date of hearing.
9. The respondent in the alternative contended that really the appellants were not absent on 5-1-1960 and that the appeal could not be dismissed in default at all and could be dismissed only on merits under Rule 30. When the pleader of an appellant is not present it is a case of the appellant's being absent within the meaning of Order XLI, Rule 17 if the appellant also is absent but not if he is present in person. When an appellant's pleader is present in Court when the appeal is called on for hearing he has either instructions from the appellant to put in appearance or he has no instructions at all. If he has no instructions at all, it is not a case of his being present and if the appellant also is not present, it is a case of absence of the appellant within the meaning of Order XLI, Rule 17. If the pleader has no instructions but the appellant is present it is not a case of his being absent. So when the pleader has no instructions whether Rule 17, applies or not depends upon whether the appellant himself is present or not. The mere physical presence of the pleader does not make out a case of the appellant's being present. When the pleader in response to the call attends the Court merely to inform it that he does not appear for the appellant it would be absurd to suggest that he thereby appears for the appellant and that it is a case of the appellant's not beingabsent within the meaning of Rule 17; see Gopal Singhv. Kailash Gir : AIR1933All652 , Allah Bux v. Budha : AIR1939All451 , Juggi Lal Kamla Pat v. R. J.Gupta, : AIR1962All407 and Balram v. Ram Nihore, 1963 All L J 103. In : AIR1933All652 Makerji and Bennett, JJ., pointed outthe distinction between a pleader who has no instructions and a pleader who has instructions for the limited purpose of applying for adjournment andobserved that to hold mat when a pleader informs the Court that he has no instructions to appear for the party, the party is present, would be to hold that it is impossible for a pleader, who wishes to withdraw from representing a party, to do so. Allsop J., observed in the case of : AIR1939All451 :
' .... appearance in the legal sense does not mean a mere physical presence ..... It means that aparty or somebody on his behalf either expressly in words or by his conduct demands an adjudication 'from the Court.'
In the case of Juggi Lal Kamla, : AIR1962All407 Mukerji and Uniyal, JJ. laid downthat when a lawyer has no instructions to proceedwith the case it must be held that he has ceased to represent the party. After a pleader his ceased to represent the party, his presence in the Court is not presence of the party and the party must be deemed to be absent. In 1963 All L J 103, A. P. Srivastava and S N. Katju JJ., distinguished or dissented fromthe case of Allah Bux : AIR1939All451 and Balram Das : AIR1949All754 but they only dealt with thequestion whether the party himself was present or absent and observed at p. 109 :
'It is true that in certain circumstances the mere physical presence of a party may not be treated as appearance in a case'.
and at p. 110 :
''If the appellant is represented by a counsel and the counsel is present though he himself is not, and the counsel states that he has no instructions, both the party and the counsel must be deemed to be absent and the appeal can therefore be dismissed for default. If however the counsel is present, but does not say that he has no instructions and only refusesto argue the case he will be deemed to be present and to be representing the appellant. In that case too the appeal can be decided on merits.'
In Radha Kishan v. Collector of Jaunpur, I L R 23 All 220 (PC) the trial court on being informed by the defendant's counsel that he had no instructions to proceed with the case decreed the suit ex parte and thendismissed the application for setting aside the ex parte decree without going into the question whether the defendant's absence was for sufficient cause or not and the Judicial Committee of the Privy Council affirmed the High Court's order directing rehearingof the application. Evidently the Privy Council approved of the view that the defendant was absent.
10. The case of a pleader's informing the court that he has no instructions is to be distinguished from the case of his applying for an adjournment and on the adjournment being refused informing the court that he had no further instructions. In the latter case it can be said that he puts in appearance. Whatever may be the reason or whatever may be the instructions given to him he does put in appearance; he is not merely physically present, he is present totake part in the case on behalf of his client. Whenhe makes an application for adjournment he doesit in the case on behalf of his client; it is impossiblefor him to present, on the case being called put, anapplication for adjournment without being present.Appearance is required at the moment when the caseis called out; the pleader is not required to be continuously present throughout the proceeding in thecase. If at the moment of the case being called outhe is present, Order 41, Rule 17 cannot be applied whatever happens after his presence. I respectfully disagree from the contrary view taken in a Full Bench of the Calcutta High Court in I L R 34 Cal 403 and the case of Musaliarakath Muhammad AIR 1923 Mad 13. I agree with the following observations of A. P. Srivastava J., in the case of Balaram 1963 All L J 103 at p. 106:--
''If he .....is present and attends it for the purpose of taking part in the suit or appeal we cannot see how he can say that he did not appear simply because for some reason or the other he was not prepared to proceed with the suit in the way in which he would have liked to proceed......If he is himselfpresent and is in attendance he cannot expect the court to ignore his presence and to proceed as if he is not there.'
The pleader's saying 'no further instructions' after rejection of his application for adjournment is not at all different from his saying that he is not prepared to argue, which is generally treated as a case of appearance and not of absence.
11. When a pleader informs the court that he has no instructions, the court is not at all concerned with the question whether he says so legitimately or rightly or not. It is concerned only with the fact that he informs it that he has no instructions and not with the Justification for it. Even if he wrongly or unjustifiably says that he has no instructions it is a case of his having no instructions and, therefore, of his absence. The court cannot compel him to be present. If he is unjustifiably absent, he may commit a wrong against his client or even against the court and may be liable to a penalty but that would be in a different proceeding. In the case before the court it cannot take any action against him and must accept his statement that on account of want of instructions he does not appear in the case. It is, therefore, unnecessary to go into the question when he can say that he has no instructions or how he can withdraw from the case. Srivastava J. said in Balaram's case, 1963 All LJ 108 at p. 108:
'Whatever may be the ground on which a counsel states that he has no instructions if he does state that he has no instructions he is deemed to have withdrawn from the case and is not considered to be a duly authorised counsel to present the party......If,therefore, the party himself is absent and his counsel stated that he has no instructions it has always been held that the party has not appeared.'
There cannot be anything like constructive appearance by a pleader; the court cannot hold him to be present merely because he ought to have been present. Uniyal J. said in the case of : AIR1962All407 that the vakalatnama filed by any pleader in the case cannot make him constructively appearing in it even though he has explicitly stated that he does not appear. It is irrelevant whether a pleader can withdraw from the case without the leave of the court or not, because even if he remains the pleader he can be absent from the court. There was, therefore, absence of the appellants on 5-1-1960.
12. Coming to the merits of the appeal, the finding of the learned Additional Civil Judge that the respondent's suit was not barred by time is correct. The decree passed in her favour in 1946 showed that she was in possession of her proprietary rights and, it she was in possession of her proprietary rights, she was also in possession of her share in the land in dispute; her interest in the land in dispute depended upon her interest in the proprietary rights. She inherited one-third share in the proprietary rights along with one-third share in the land in dispite, and if she obtained possession over the share in the propretary rights it meant that she obtained possessionover her share in the sir land also. The appellants never pleaded ouster and according to the pleadings the onus lay upon them to prove that her suit was barred by time. They failed to prove it and the suit was rightly decreed.
13. In the result the appeal should be dismissed with costs.
R.S. Pathak, J.
14. I agree.