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Kundha Singh and ors. Vs. the Punjab State and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberF.A.F.O. No. 78 of 1960
Judge
Reported inAIR1962P& H82
ActsIndian Limitation Act, 1908 - Sections 5; Code of Civil Procedure (CPC), 1908 - Sections 2(2), 80 and 556 - Order 7, Rule 11 and 11(2) - Order XLI, Rules 17, 17(2) and 19
AppellantKundha Singh and ors.
RespondentThe Punjab State and ors.
Cases ReferredNadir Khan v. Itwari
Excerpt:
.....of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - but some courts have taken the contrary view as well. this clearly shows that the intention of the legislature was that under r. 19. moreover, if the appeal is dismissed on merits in the absence of the appellant, he will be debarred from raising a number of points in support of his appeal, however good they may be, and he will not be able to question the findings of fact after wards. zahur uddin, air 1938 all 548. in this case, the learned judges held that the appellate court was not debarred from deciding an appeal on merits when the appellant failed to..........bank of india, defendant no. 2.(3) defendant no. 1 pleaded that no valid notice under section 80, civil procedure code, was given by the plaintiff and, therefore, the suit was not maintainable. defendant no. 2 denied the receipt of any such notice.(4) the following preliminary issue was framed 'whether valid notice under section 80, civil procedure code, was given; if not, what is the effect?'(5) holding that no valid notice under s. 80, civil procedure code, was served, the trial court on 1-7-1958 rejected the plaint under order vii, rule 11, civil procedure code.(6) against this order, the plaintiff filed an appeal in the court of the district judge, hissar. this appeal came up for hearing before him on 9-3-1959, when neither the appellant nor his counsel was present. the learned.....
Judgment:

(1) The question of law involved in this case is whether under the provisions of O. 41 R. 17, Civil Procedure Code, a Judge is entitled to dismiss an appeal on merits if the appellant is not present on the date of the hearing.

(2) On 20-7-1957 Kundha Singh filed a suit for the recovery of Rs. 2,300/- against the Punjab State, defendant No. 1, and the State Bank of India, defendant No. 2.

(3) Defendant No. 1 pleaded that no valid notice under Section 80, Civil Procedure Code, was given by the plaintiff and, therefore, the suit was not maintainable. Defendant No. 2 denied the receipt of any such notice.

(4) The following preliminary issue was framed

'Whether valid notice under Section 80, Civil Procedure Code, was given; if not, what is the effect?'

(5) Holding that no valid notice under S. 80, Civil Procedure Code, was served, the trial Court on 1-7-1958 rejected the plaint under Order VII, Rule 11, Civil Procedure Code.

(6) Against this order, the plaintiff filed an appeal in the Court of the District Judge, Hissar. This appeal came up for hearing before him on 9-3-1959, when neither the appellant nor his counsel was present. The learned District Judge, however, himself looked into the file of the case and agreed with the trial Court in holding that no valid notice had been given by the plaintiff in the case. Consequently, on the same day, be dismissed the appeal.

(7) On 16-3-1959, the plaintiff filed an application under Order XLI, Rule 19, Civil Procedure Code, before the learned District Judge for readmission of the appeal. The learned District Judge, vide his Order dated 19-3-1960, dismissed this application holding that the appeal was not dismissed in default but it was dismissed on merits on 9-3-1959 and, therefore, the proper remedy of against the same and he could not file an application under Order XLI, Rule19, Civil Procedure Code. The plaintiff has filed the present appeal under O. XLIII, R.1(t),Civil Procedure Code, against the order of the District Judge dismissing his application under O. XLI, R.19, Civil Procedure Code.

(8) Learned counsel for the appellant submitted that the learned District Judge, while passing his order dated 9-3-1959, should have dismissed the appeal in default and not on merits and even if he had dismissed the same on merits, his order should be treated as an order of dismissal in default and an application under O. XLI, R.19, Civil Procedure Code, would be competent against the same.

(9) After hearing the counsel for the parties, I am of the view that there is considerable force in this submission of the learned counsel for the appellant. Order XLI,R.17 of the Civil Procedure Code, is as follows:

'Rule 17(1) 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.

(2) Where the appellant appears and the respondent does not appear, the appeal shall be heard ex-parte.'

Order XLI, R.19, Civil Procedure Code, as applicable to Punjab is as under:

'Rule 19(1) Where an appeal is dismissed under R.11, sub-rule(2), or R.17 or R.18, the appellant may apply to the Appellate Court for the readmission of the appeal; and. where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.

(2) The provisions of S.5 of the Indian Limitation Act, 1908 (IX of 1908) shall apply to applications under sub-rule(1).'

(10) It may be mentioned that the word 'the Court may make an order that the appeal be dismissed' occurring in R.17, sub-clause (1) mentioned above, have been substituted for the words ' the appeal shall be dismissed for default', which occurred in the corresponding S.556 of the old Code. Under the old Code, it was undisputed that in the absence of the appellant, the appellate Court had no power to dismiss the appeal on merits. It could only dismiss the same for default. The change in the language of the rule has, however, given rise to a conflict for judicial opinion regarding the power of the appellate Court to dismiss the appeal on merits or in default. Majority of the Courts have taken the view that in spite of this change in the language of the Rule, the appellate Court is bound to dismiss the appeal in default and it cannot dismiss the same on merits. But some Courts have taken the contrary view as well.

So far as this Court is concerned, my attention was not invited to any authority on this point. Under the old Code, there was no room for doubt that the appellate Court in such circumstances could only dismiss the appeal for default and it had no other alternative. The question arises whether this change in the Rule enables the appellate Court to dismiss the appeal on merits in the absence of the appellant on the date of hearing. In my view, this change has merely enabled the appellate Court to adjourn the case to some future date, if it does not want to dismiss the appeal in default on that date, or pass such other order as it thinks proper in the circumstances of the case, but it cannot dismiss the appeal on merits. Under the old Code, the appellate Court had no other choice but to dismiss the appeal in default in the absence of the appellant. But under the new Code, the appellate Court has been given a discretion. It may dismiss the appeal in default or may adjourn it to some future date. But as I took at the matter, the appellate Court is not authorized to decide the appeal ex prate and dismiss the same clause(2) of R.17 contemplates that when the appellant is present and the respondent does not appear, the appeal shall be heard ex prate. But it has not been provided in this Rule that when the appellant does not appear and the respondent appears, then the appeal shall be disposed of ex parte. If that were the intention of the Legislature, a clear direction to this effect would have been incorporated in this Rule.

Moreover, when an appeal is dismissed under R.17,the appellant is entitled to apply to the appellate Court for the readmission of the same under R.19 of Order XLI, Civil Procedure Code, and where the appellant proves to the satisfaction of the Court that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the Court shall readmit the same. If the appeal is dismissed on merits under R.17,then the appellant will be debarred from seeking his remedy under R.19 of Order XLI, Civil Procedure Code, which has remained intact even though the language in R.17 had been changed. This clearly shows that the intention of the Legislature was that under R.17 the appeal should not be dismissed on merits in the absence of the appellant but the same should be dismissed in default so that he may avail of the remedy provided under R.19.

Moreover, if the appeal is dismissed on merits in the absence of the appellant, he will be debarred from raising a number of points in support of his appeal, however good they may be, and he will not be able to question the findings of fact after wards. In my opinion, an appeal can be dismissed on merits only under R. 30 of Order XLI, Civil Procedure Code, after hearing both the parties. This view of mine finds support from Musaliarakath Muhammad v. Manavikrama the Zamorin Rajah Avergal, AIR 1923 Mad 13, Maung Than Ge v. maung Po Thing, AIR 1925 Rang 96. Taher Sheikh v. Otaruddi Howladar, AIR 1929 Cal 475, Basudev v. Bideshi, AIR 1929 Rang 11 (2), Digendra Chandra Pal v. Radha Ballav Pal, AIR 1953 Assam 191, and Shri Krishna v. Girdhari Lal, ILR (1953) 3 Raj 578.

(11) A contrary view was taken by Sultan Ahamad J. in Daulat Singh v. Kesho Prasad Singh, AIR 1921 Pat 325, wherein it was held that if the appellant was absent and the respondent appeared, the appellate Court could decide the appeal on merits. This ruling was dissented from in Digendra Chandra Pal's case AIR 1953 Assam 191. Moreover, this decision is based on the change in the language in Order XLI,R.17, Civil Procedure Code, from the words 'the appeal shall be dismissed' in Sec.556 of the old Code to the words 'may make an order that the appeal be dismissed' of the present Code of Civil Procedure. The learned Judge was of the opinion that previously no discretion was given to the Court, while in the present Code a wide discretion was given to the appellate Court, which could decide the appeal on its merits also. As I have already held above, this change in the language has merely enabled the appellate Court to either dismiss the appeal in default or adjourn it to some other date, or pass any other order date, or pass any other order as it thinks proper in the circumstance of the case, but it could not dismiss the appeal on merits. The detailed reasons in arriving at this conclusion have already been discussed above.

The other authority taking the opposite view is a decision of the Division Bench of the Allahabad High Court in Chimman Lal v. Zahur Uddin, AIR 1938 All 548. In this case, the learned Judges held that the appellate Court was not debarred from deciding an appeal on merits when the appellant failed to appear. In arriving at this conclusion, they interpreted the provisions of Order XLI,R.11,Civil Procedure Code, and observed that under R.11(1) of Order XLI, Civil Procedure Code, the appellate Court could dismiss the appeal on merits, even if the appellant did not appear and they went on to say that this power of the appellate Court under R.11 was not taken away when a notice was issued to the respondent and the case was being decided under R.17 of Order XLI, Civil Procedure Code. The appellate Court in that case also could dismiss the appeal on merits even if the appellant did not appear. With very great respect to the learned Judges, in my opinion the interpretation put by them on Order XLI.R.11(1), Civil Procedure Code, is not correct. The relevant portion of Order XLI, R.11, Civil Procedure Code, is as follows:

'R. 11(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly, if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader.

(2) If 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.* * * * *

A bare reading of these provisions would show that under sub-rule(1) the Court can dismiss the appeal on merits only if the appellant or his pleader is present and either of them is heard on the date fixed for the purpose. If, on the other hand, neither of them is present on that date, the Court will dismiss the appeal under sub-rule (2) of this very Rule. Sub-rule (2) of R.17. when read with order XLI, R.19, clearly shows that under sub-rule (2) of R.11, the Court will dismiss the appeal in default and not on merits, because under R.19 the appellant can ask for the readmission of the appeal if he could prove that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing.

(12) The next question for decision is what is the remedy of the appellant if his appeal is dismissed on merits instead of being dismissed in default under Order XLI, R.17, Civil Procedure Code.

Since I have held above that the appellate Court had no jurisdiction to dismiss the appeal on the merits under Order XLI, R.17, Civil Procedure Code, its order should be treated as an order of dismissal in default and the remedy of the aggrieved party would be to move an application under Order XLI, R.19, Civil Procedure Code, for the readmission of the appeal (vide Mange Than GE v. Mange PO Thin AIR 1925 Tang 96). It may be mentioned that in Nadir Khan v. Itwari, AIR 1924 All 144, it was held that the right of appeal did not depend on what the Court ought to have doe but on what it actually did and, therefore, an appeal lay against the order dismissing the appeal on merits in the absence of the appellant. In this case, the learned Judges set aside the order passed by the lower appellate Court on the ground that it could not dismiss the same in default. The learned Judges further directed the appellant to move the lower appellate Court for the restoration of the appeal. In substance, there is no difference in the remedy suggested in both these authorities.

Since I have held that the order dismissing the appeal on merits in the absence of the appellant would be treated as an order of dismissal for default, such an order would not come within the definition of the word 'decree; as given in Section 2(2) of the Code of Civil Procedure. As such, no appeal would be competent therefrom. In any opinion, therefore, no appeal lies from such an order and the only remedy of the aggrieved party is to move an application under Order XLI, R.19 Civil Procedure Code. In the present case, the appellant had moved such an application, which had been dismissed by the lower appellate Court on the ground that such an application was not competent and the proper remedy of the appellant was to move the High Court.

(13) I would, consequently, set aside the order dated 19-3-1960 of the learned District Judge and direct that he should consider the application under Order XLI, R.19, Civil Procedure Code, and dispose if of in accordance with law. In the circumstances of this case, there will be no order as to costs in this Courts.

(14) Parties have been directed to appear before the District Judge on 26-6-1961.

(15) Order accordingly.


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