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Shantilal Chandrashankar and anr. Vs. Bai Basi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 145 of 1974
Judge
Reported inAIR1976Guj1; (1975)GLR1
ActsCode of Civil Procedure (CPC), 1908 - Order 17, Rule 3 - Order 41, Rules 11, 11(1), 11(2), 17, 19 and 30
AppellantShantilal Chandrashankar and anr.
RespondentBai Basi
Appellant Advocate R.M. Vin, Adv.
Respondent Advocate R.K. Chandani, Amicus Curiae
Cases ReferredKundha Singh v. Punjab State
Excerpt:
- - it is found that the notice to the respondent has not been served in consequence of the failure of the appellant to within the period fixed, the sum required to defray the cost of serving the notice, the court may make an order that the appeal be dismissed. it may even pass an order admitting the appeal if the court is satisfied that the matter deserves to be admitted. further, the words 'may make an order that the appeal be dismissed' occurring in order 41, rule 11 sub-rule (2) clearly indicate that the court, even in the absence of the advocate may admit the appeal or may adjourn it to another date or may dismiss the appeal for default if on the date fixed for admission or any another date to which the hearing for admission is adjourned, the appellant or his advocate does not.....divan, c.j.1. the main question which arises for our consideration in this appeal is whether under o. 41, r. 11. subrule (1) of the code of civil procedure. it is open to the appellate court to dismiss the appeal before it on merits of the case even though the appellant or his pleader may be absent at the time when the appeal is called on for hearing. d. p. desai, j., sitting singly has taken the view that the appellate court has such power under order 41. rule 11 (1) and this appeal has been filed against the order passed by him refusing, to restore the appeal and re-admit it under its original number under the provisions of o. 41. r. 19.2. the facts giving rise to this letters patent appeal are as follows, on july 1, 1971 d. p. desai. j. was sitting singly for admission and at that.....
Judgment:

Divan, C.J.

1. The main question which arises for our consideration in this appeal is whether under O. 41, R. 11. subrule (1) of the Code of Civil Procedure. It is open to the appellate Court to dismiss the appeal before it on merits of the case even though the appellant or his pleader may be absent at the time when the appeal is called on for hearing. D. P. Desai, J., sitting singly has taken the view that the Appellate Court has such Power under Order 41. Rule 11 (1) and this appeal has been filed against the order passed by him refusing, to restore the appeal and re-admit it under its original number under the provisions of O. 41. R. 19.

2. The facts giving rise to this Letters Patent Appeal are as follows, On July 1, 1971 D. P. Desai. J. was sitting singly for admission and at that time, Second appeal No. 218 of 1971 came up for admission before him. On that day he passed the following order:-

'Mr. Vin absent. Having gone through the judgments of the Courts below and the memorandum of appeal, I see no reason to admit this appeal. Dismissed.'

'Thereafter Mr. Vin moved the Court by Miscellaneous Civil Application No.409 of 1971 for readmitting the appeal on file and fixing it again for admission and his contention was that on July 1. 1971 when the appeal was called out, he was Prevented from appearing before DP. Desai, J., on account of sufficient reasons. On November 24, 1971 D P. Desai, J. passed the following order on the application filed by Mr. Vin:-

'Rule. Notice to the members of the Bar as ordered on the office (note) in C. R. A. No. 602/71. To be heard with C. R. A. No. 602/71.'

The ground given in the application for setting aside the order of dismissal and re admission of the appeal on file was that Mr. Vin was busy with some other matter in some other Court when the Second Appeal was called out on July 1. 1971 before DP Desai, J., for admission. This ground was not controverted by the other side and, therefore, the learned Single Judge Proceeded on the basis that Mr. Vin could not appear before him at the stage of admission because he was engaged in some other matter before another Judge of this High Court, In his judgment and order on the Miscellaneous Civil Applicator for re-admission of the Second Appeal on file and for restoration, D. P. Desai. J., made it clear that when the matter was called out for admission along the several other matters fixed on July 1. 1971, no mention was made on behalf of Mr. Van before the learned Judge that Mr. Van was busy in some other Court and, therefore, the matter in-flight be kept back for sometime in order to enable him to come and make his submissions before D. P. Desai. J_ nor was the matter transferred to another advocate under the right given to an advocate under Rule 17 of K High Court Appellate Side Rules. It was made clear by D.P Desai J that it was not incumbent on Mr. Vin to transfer the matter to another advocate because he was engaged or was likely to be engaged in some other Court. He only took note of the fact that this right was not exercised in the present case.

3. It was urged by Mr. Vin before the learned Single Judge at the hearing of the Miscellaneous Civil Application that an order of dismissal on merits could not be passed by the Adulate Court under Order 41. Rule 11 (1) when the party or his advocate was absent on the date fixed for hearing the party or the advocate. The submission was that there was no jurisdiction in the Court to pass such an order and that Order 41. Rule 11 (1) contemplated hearing of the party or his Pleader before the matter was dismissed summarily on merits. It was also urged that the only course left open to the Court while dealing with a matter fixed for hearing under O. 41, R. 11 was to adjourn the matter if the party or his pleader did not appear and make submissions or to dismiss the matter for default under sub-rule (2) of Rule 11. It was contended before D. P. Desai, J., in the Miscellaneous Civil Application that the order passed by the Court was on the face of it illegal and a nullity and, therefore, the order could be reviewed either under the Provisions relating to review or under Section 151 of the Code. D P. Desai, J., has made it clear that if the order passed by him on July 1. 1971 were to be read as an order for dismissal for default, there was sufficient ground made out by Mr. Van for restoration and re-admission of the matter so that the matter may be placed down once again for admission. It is in the light of this history of the matter that we will now proceed to deal with this appeal.

4. Before, Proceeding further with the case we may point out that as far back as 1873, a Division Bench of the Calcutta High Court had taken the view in Mahesh Chunder Bose v. Thakoor Dass Gossamee, (1873) 20 Suth WR (Civil Rulings), 425, that where a Judge, on the non-appearance of the appellant in Person or by Pleader instead of observing the direction of the law, namely Civil Procedure Code of 1859, Section 346. Goes into the courts of the case and gives a judgment against the appellant the appeal must be considered ns dismissed for default of the appellant in appearing: and an application for re-admission and rehearing cannot be treated as one for review. But must be entertained under Section 347. Sir Richard Couch. C J . pointed out in his judgment in the case that when the appeal was called out before the District Court though three pleaders had been retained by the appellant, all the three were engaged in other Courts at the particular ornaments and hence not one of them appeared before the District Court when the matter was called out, The learned District Judge, instead of dismissing the appeal for the non-appearance of the appellant in person or by Pleader, appeared to have thought that it was his duty to see what were the merits of the case and accordingly he gave a judgment in which after saving that the onus was upon the Plaintiff and that he only Produced certain witnesses, the District Judge observed that he considered that the evidence was not sufficient to establish the Plaintiffs title and oust an old occupant. Sir Richard Couch observed that the District Judge was wrongly in taking that voice. He ought to have observed the direction of the law and acted under S. 346 of the Code of Civil Procedure. It was observed that in an earlier decision reported in (1871) 15 Suth WR (Civil) 193, it was held that where a Judge does as the District Judge had done in this case, the appeal must be considered as having been dismissed for default of the appellant in appearing and Sir Richard Couch. observed:-

'Perhaps it ought to have occurred to the Judge that it was not a satisfactory way of considering or of deciding upon the merits of the case when he did not hear what the appellant had to save in support of his case.'

and finally it was observed:-

'There has been an erroneous Procedure of these Courts, which vitiates the decision that is, appealed, from, and we think the decrees must be set aside and the case remanded for re-hearing.'

Thus, nearly a century back the view was taken by the Calcutta High Court that when the appellant or his advocate is absent at this time when the matter is called on for hearing the correct courses to dismiss the appeal for default in stead of deciding the appeal on merits.

5. Before proceeding to reconsider the Provisions of Order 41, Rule 11 and the other relevant provisions of the Code of Civil Procedure, it is necessary to point out that under Order 41, Rule 1.sub rule (2) the memorandum of appeal has to set forth, concisely and under distinct heads, the grounds of selection etc. the decree appealed from without any argument or narrative: and such ground have to be numbered consecutively. Every appeal has to be Preferred in the form of a memorandum signed that the appellant or his Pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum has to be accompanied by a copy of the decree appealed from and of the judgment and which it is founded unless the Appellate Court dispenses with the copy of the judgment. It is clear, therefore that when the appellate Court Directs to take up for hearing on merits at the admission stage an appeal before it has only Lot a copy of the decree against which the appeal has been filed and a copy of the judgment on which the decree is founded, and without any argument or narrative, the grounds of objection to appealed from. At that stage in view of the provisions of Order 41. Rule 1. The Appellate Court has got that benefit of the argument or the narrative in support of the case of the appellant, Under Order 41. Rule 11 it is provided.

'll. (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 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 appellant is called on for hear of the Court may make an order that the appeal be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.

Under Order 41, Rule 19, where an appeal is dismissed under Rule 11, sub rule (2), or Rule 17 or Rule 18 the appellant may apply to the Appellate Court for the re-admission of the appeal and, where it is Proved that he was prevented by any sufficient cause from appear when the appeal was called on for hearing. The Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit. Rule 17 provides for the hearing of the appeal after it has been admitted and the notice of the admission of the appeal has been served on the respondent. Under Order 41, Rule 17 where on the day fixed or on any other day to while the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing. The Court way makes an order: that the appeal be dismissed. Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. Under Order 41 Rule 18 where a tie day fixed, or on any other day to which the hearing may be adjourned. It is found that the notice to the respondent has not been served in consequence of the failure of the appellant to within the period fixed, the sum required to defray the cost of serving the notice, the Court may make an order that the appeal be dismissed. Provided that no such order shall be made although the notice has not been served the respondent if on any such day the respondent appears when the appeal is called or for hearing. It is clear that when an appeal is dismissed for default, either at the stage of order under Order 41. Rule 11, sub-rule (2) or dismissed for default under Order 41, Rule 17. Sub-rule If it is then to the Appellant to show that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing on the earlier occasion and an so satisfying the Court, he can get the appeal respondent, on the file and thereafter have the matter disposed of after hearing the appellant or his advocate. The two staves, one contemplated by Order 41, Rule 11 and Order 41. Rule 17 is distinct stages. Order 41, Rule 11 deals with the stage where the matter has not vet been admitted and notice to the respondent has not yet been issued. Order 41. Rule 17 deals with the stage where the notice has been served on the respondent and where, he appears in that case or if he does not appear, the appeal has been heard ex parte.

6. Coming now to the wording of Order 41, Rule 11, sub-rule (1), it is obvious when read in the context of sub rule (2), that at the admission stage. The appellate Court may send for the record of the case if it thinks fit so to do and it has to fix a day for hearing the appellant or his Pleader regarding the admission of the appeal. If the appellant or his Pleader appears on the day fixed for hearing at the admission stage after hearing him accordingly, the appellate Court 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. Thus it is open to the appellate Court after hearing the appellant or his pleader to dismiss the appeal summarily under Order 41, Rule 11, sub-rule (1). However, if on theday fixed for the admission of the appear on any other day to which the hearing may be adjourned the appellant does not appear (and in this context the non-appearance of the advocate of the appellant would stand on the same footing as non appearance of the appellant himself) when the appeal is called on for hearing for admission, the Court may make an order that the appeal be dismissed. It is clear that under the scheme of 0. 41, R, 11 both the contingencies, which are likely to happen, are dealt with, namely. What is to be done when the appellant or his pleader appears when the matter is taken up for hearing for admission and when he does not for appear. If he appears, it is open to the Court to dismiss the matter summarily after hearing the appellant or his advocate. If he does not appear, the Court can pass an order that the appeal be dismissed for default or it may adjourn the matter to some other date when the appellant or his advocate has not appeared. It may even Pass an order admitting the appeal if the Court is satisfied that the matter deserves to be admitted. The main question, however, is whether the Court can dismiss the matter on merits in the absence of the appellant or his advocate.

7. We may Point out that in the context of the trail original suit or the matter before a trail court, the legislature in terms has provided under O.17. R.3 that it is open to the trail court to proceed to decide the suit on merits where any party to a suit to whom time has been granted fails to produce his evidence or to cause the attendance of his witnesses or to Perform any other act necessary to the further proceed of the suit, for which time has been allowed to decide the suit forthwith on such materials as may be or, the record of the case on the date to which the matter has been adjourned for doing any of the things mentioned above. No such specific Power to dispose of an appeal on merits at the admission stage has been offered to the Appellate Court in the law of the appellant or his advocate. So far as the admission stage of the appeal is concerned it must be born in mind that the arguments and the narration which are highly necessary for the disposal of the appeal even at the admission stage, are not before the appellate Court because under Order 41, Rule 1. Sub-rule (2) the memorandum of appeal cannot contain any argument or narrative, it can only contain the Rounds of objections to the decree appealed from and not any argument or narrative. Under these circumstances it is obvious, that the adulate Court would be without the benefit of the narration or the arguments if it were to proceed to dismiss on merits an appeal at the admission stage. As we have pointed out the specific power conferred on a trial Court under Order 17. Rule 3 is not conferred upon the Appellate Court and in our petition looking to the scheme of the code of civil procedure and particularly the scheme of Order 41. Rule 11 as contain terms has provided under O. 17 to the respondent and is Driver served R. 3 that it is open to the trial trusted with the scheme of O. 17, R 3 it Court to upon him, if on the date fixed for the final Proceed to decide the suit on merits where hearing of the is not correct to read by implication a matter, or on any over any Party to a suit to whom time has day to which the hearing may be adjournment power in the Appellate Court to dismiss granted fails to procedure his evidence ed, the appellant or his advocate does not the appeal on merits. Further, the words 'may make an order that the appeal be dismissed' occurring in Order 41, Rule 11 sub-rule (2) clearly indicate that the Court, even in the absence of the advocate may admit the appeal or may adjourn it to another date or may dismiss the appeal for default if on the date fixed for admission or any another date to which the hearing for admission is adjourned, the appellant or his advocate does not appear when the appeal is called on for bearing the Court may make an order that the appeal be dismissed. It other date or may dismiss the appeal must be noticed that the words used by the Legislature in Rule 11 and Rule 17 (1) of Order 41 are almost identical. If under Order 41, Rule 19 in the event of an order of dismissal passed under Rule 17 on sufficient or any other, date to cause being shown for non-appearance when the appeal was called on for hearing the appeal can be for admission adjourned, the appellant-admitted, that is, restored, it is difficult to imagine why a different type of order should be Passed when or his advocate does not appear. It is the appeal is dismissed at the time when at the admission stage on the day fixed for the admission or on any only if the appellant or his advocate another day to which the hearing may be adjourned, the appellant or his advocate does not appear when the pears on that day that the Court is empanel is called on for hearing. It is nowhere contemplated under order 41, Rule 17 that at the stage of final hearing of the appeal an order of dismissal on merits can be passed and it is too much to believe that the Legislature conferred Power upon the Appellate Court to dismiss an appeal on merits at the stage of admission if, when the matter is called on for hearing at the admission stage the appellant or his advocate is absent.

8. The decision of the Allahabad High Court on which D. P. Desai, J relied in support of his conclusion that or his Pleader. The same language which it is open to the Appellate Court to dismiss an appeal on merits even at the admission stage is in Prem subPrakash v. Ram Pratap. AIR 1967 All 47. According to D. S. Mathur, J sitting single in that case. Order 41. Rule 11 (1) can be given only one interpretation, namely that in case of absence of the appellant or his leader in spite of communication to him of the day for hearing it is in the discretion of the Appellate Court either to dismiss the appeal on merits by proceeding under sub-rule (1) or to dismiss the appeal for default by Proceeding under sub-rule (2). Where the Court decides to dismiss the appeal on merits under sub-rule (1) the one remedy available to the aggrieved Party is to challenge the order if it is a decree in the appeal. But if the anneal is dismissed for default under sub-rule (2) the aggrieved Party has the remedy to apply for restoration under O. 41 R. 19. According to Mathur. J.. where it is clear from the order that the appeal preferred by the appellant was dismissed on merits and the matter was also, to such that the appellate Court should not have dismissed the appeal under sub-rule (1) the order is and must be deemed to be under that sub-rule and as such no application under Order 41, Rule 19 is maintainable, It was further held that sub-rules (1) and (2) of Order 41. Rule 11 govern different kinds of cases and it cannot be said that there exists any conflict between these two Now, on a perusal of the facts of the case before Mathur. J., it is clear that, as a matter of fact, the entire observations regarding Order 41. Rule 11 are obiter as we will now proceed to explain.

9. In that Particular case the appellant before the High Court was the defendant. He was appealing against the order passed by the District Judge of Kumaun dismissing his application under Order 41, Rule 19 for restoration of the appeal, which had earlier been dismissed on merits. But it was the case of the original defendant that the appeal had been dismissed for default under O. 41,R. 11. Mathur, J., found that the District Judge had not worded his order proper, but what he apparently meant was that the appeal had been dismissed on merits under Order 41. Rule 11 (1) and consequently no application under O.41, R. 19 for restoration of the appeal was maintainable and the only remedy available to the party was to challenge the decree Passed in the appeal by wav of Second Appeal. Paragraph 2 mentions that the suit instituted by the original Plaintiff was decreed ex parte by the trial Court when the defendant did not put in appearance on the date fixed for hearing. The defendant applied for restoration of the suit after setting aside the ex parte decree, but the application was dismissed. It is, therefore, clear that the defendant had applied to the trial Court under O 9. R. 13 for setting aside the ex parte decree and the trial Court had dismissed that application. The original defendant that thereafter preferred an appeal against the order refusing to set aside the ex parte decree. That appeal was listed for admission on JuIy 1, 1961. The notice of the date of hearing was given to the counsel for the original defendant but on the date fixed, that is, July 1, 1961. Neither the original defendant who was the appellant before the District Court nor his counsel but in appearance and the District Judge decided to dismiss the appeal on merits. The Allahabad High Court held that put an inference could be drawn from the following words used in the order dismissing the appeal:

'The reasons given by the learned Munsif for refusing the application are, in my opinion proper,'

The defendant who was the appellant before the District Judge treated the order of dismissal to be for default and moved an application under Order 41 Rule 19 for setting aside the order and for readmission of the appeal for hearing. The application was dismissed under the order under appeal which ran as under:-

'The appeal having been dismissed under Order 41, Rule 11, I do not think I can restore it to its member. The applicant has his remedy by appeal. Rejected.'

It is, therefore, clear that the appeal which the original defendant had Preferred to the District Court was an appeal against the order refusing to set aside an ex narrate decree and it could only be an appeal under Order 43, Rule 1. Clause (d) namely an appeal against an order under Rule 13 of Order 9 rejecting an application for an order to set aside a decree Passed ex parte. It was, therefore, what is known as an Appeal from Order. The Rules of Order 41 apply as far as may be to Appeals from Orders. Under Section 104, sub-section (2) of the Code of Civil Procedure, no appeal lies from any Order Passed in Appeal because See 104 provides that an Appeal shall lie from the Orders mentioned in Order 43 and no further Second Appeal lies from any order Passed in Appeal from Order. It is thus obvious that the appeal before the High Court with which Mother, J was dealing was not maintainable, the Appeal being against an Order passed by the District Court in an appeal before him under the Provisions of 0. 43. R. 1 (d), It is thus clear that whatever has been observed by Mathur. J., in Prem Prakash v. Ram Pratap (Supra) is clearly obiter. According to Mathur. J.- in the above, case. The Legislature intentionally incorporated the words 'if he appears on that day' in sub rule (1). Making it clear that the hearing of the appellant or his Pleader shall not be a material Dart of the passing of an order of dismissal under sub-rule (1). In other words, the Appellate Court shall have; jurisdiction to Pass an order under sub-rule (1) after hearings the appellant or his Pleader, or without hearing him for so long as a day for hearing had been fixed and; information thereof was communicated to the appellant or his Pleader. When the Legislature intentionally added the above words in sub-rule (1) the Courts of law shall not be justified in treating there an as superfluous or in disregarding their effect. According to him. Sub-rule (1) can be giver only one interpretation, namely that in case of absence of the appellant or his leader in spite of communication to him of the day for hearing the Appellate Court has the discretion either to Proceed under sub rule (1) by dismissing the appeal on merits or to Proceed under sub-rule (2) by dismissing he appeal for default. With respect to Mathur. J and with respect to D. P. Desai we are unable to agree with this line of reasoning. Really speaking, sub-rule (2) of Rule 11 deals with precisely the stage referred to in sub-rule (1) At that -stage if the appellant or his advocate appears. The matter can be dealt with under sub-rule (1) if he does not appear, the matter bas to be dealt with under sub-rule (2). The Legislature hag been very clear under Order 41,1 Rule 11 and by implication a Power of dismissing the appeal on merits, when no such Power has been conferred in express terms, cannot be assumed by the Appellate Court to itself. As a matter of fact, it would, be reading much more into the wording of Order 41, Rule 11 than what the Legislature has intended to Provide by that sub-rule if a power in the appellate Court to dismiss the appeal on merits were to be read into the provisions of sub-rule (1) of Rule 11.

10. In Babi Ram v. Bhagwan Din, AIR 1966 All 1, a Full Bench of the Allahabad High Court has dealt with the Provisions of Order 41, Rule 17 (1) and Rule 30 and it has held that the most Important feature of Order 41, Rule 17 (1) is its permissive character. The use of the word 'may' or 'shall' is not decisive of the enabling or imperative nature of a statutory provision and there may be cases where, having regard to the nature and object of the act contemplated by a statute and to the rights of Persons for whose benefit it is to be done, the word 'may' has to be read an imposing a duty as well. According to the Full Bench of the Allahabad High Court, there is nothing in the nature and object of the act empowered by Order 41. Rule 17 (1) nor is there any such right in the person for whose benefit the Power has been Conferred to couple, the Power with the duty to do that act and no other Under O. 41, R. 30 of the Code of Civil Procedure the appellate Court after hearing the Parties or their pleaders and referring to any Part of the proceedings. Whether on appeal or the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall Pronounce judgment in open Court. Either at once or on some future day of which notice shall be given to the pares or their pleaders In terms Rule 30 speaks about the Lamellate Court assigner its judgment after hearing the Parties and their leaders. When the Party or Pleaders are not heard and when the date fixed for hearing the appellant or the advocate does not appear when the matter is called on for hearing. The Court may make an order that the appeal be dismissed. The other alternative to the Court is to adjourn the matter to some other date and it is clear in the light of O. 41, R. 17 that where the matter has been dismissed under O. 4. R 17. It is treated as an order of dismissal for default and not of dismissal on merits of the, case Reading the section. Therefore no O. 41. R 17 in the context of O. 41. R 19 it is, clear that the only order which the Court can Pass under Order 41, Rule 17 is an order for dismissal for default since when an order of dismissal is Passed under Order 41, Rule 17, it is open to the appellant or his pleader to have the matter restored or re-admitted on showing sufficient cause to the satisfaction of the Appellate Court regarding his absence at the time when the matter was called on for hearing at the final hearing stage. With respect to t1je learned Judges of the Allahabad High Court, therefore, we are unable to agree with their conclusions that the appellate Court under 0. 41. R 17 has also the option of considering the appeal on merits and confirmation, varying or reversing the decree appealed against. It is true that in the absence of the appellant or his advocate an order may be passed in his favour and to that extent the Appellate Court may decide the matter ,on merits in his favour but if the matter is to be dismissed, it cannot be dismissed on merits under Order 41, Rule 17 That is the distinction which we want to intake against the observations of the learned Judges of the Full Bench of the Allahabad High Court.

11. We find that the reasoning, which has appealed to us, also appealed to P. C. Pandit. J., of the Punjab High Court in Kundha Singh v. Punjab State, AIR 1962 Puni 82. There the learned Single Judge of the Punjab High Court was dealing with a situation under Order 41, Rule 17 and he held that under the provisions of Order 41, Rule 17, a Judge is not entitled to dismiss an appeal on merits if the appellant is not Present on the date of the hearing, An appeal can be dismissed on merits only under Rule 30 of Order 41, after hearing both the parties. He Point led out that under Order 41, Rule 17 the appellate Court has discretion to dismiss the appeal in default or to adjourn it to some future date. But it is not authorized to dismiss the same on merits in the absence of the appellant or his advocate. He dissented from the views of the Allahabad and the Patna High Courts to the contrary. He also held as was done by Sir Richard Couch in the decision delivered in the Calcutta High Court in 1873 that where instead of dismissing the appeal for default the Appellate Court dismissed it on merits, 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 cannot come within the definition of the word 'decree' as given in Section 2, subsection (2) and, therefore, no appeal lies from such an order and the only remedy of the aggrieved Party is to move an application under Order 41. Rule 19. We agree with the reasoning of the learned Single Judge of the Punjab High Court since the line of reasoning which has appealed to us, also appealed to him in that case.

12. In our opinion on, an analysis of the provisions of order 41. Rule 11 read in the light of the scheme of O.4 1, R. 1, O. 41. R. 17, O. 41. R 19 and O. 41, R. 30 and the identification language to be found O. 41 R 11 (2) and O. 41, R 17 (1), it is obvious that it is not open, to any appellate Court to dismiss an appeal on merits at the admission stage, if when the matter is called on for hearing the appellant or his advocate is absent. The only order which the Appellate Court can Pass in such circumstances is to dismiss the matter for default and even if the appellate Court reports to dismiss the appeal on merits, it must be read as an order of dismissal of the appeal for default, Under these circumstances, with respect to him, we are unable to agree with the conclusions of D, P. Desai, J and in our opinion, the high court having no jurisdiction to dismiss an appeal on merits at the admission stage, whatever might have been observed the order dated July 1, 1971 regarding in the merits of the case must be disregard ed and the Miscellaneous Civil Application must be treated as an application for restoration and re-admission under O.41 R. 19. Since D. P. Desai, J has held that there was sufficient cause for Mr. Vin's non-appearance on July 1. 1971 when the matter was called on for hearing, at the admission stage, it is clear so that the matter should be restored and re-admitted so that it can be taken up for admission once again.

13. We had asked Mr. R. K. Abichandani to appear as an Amcus Curae and to help us by looking un the authorities and we express our remediation and our gratitude to him for the help that he has rendered. He pointed out that it is possible to take the view that the Present Letters Patent Appeal may not be maintainable but the Order under appeal finally disposes of the rights of the Parties and is really an order on an original proceeding before D. P. Desai, J., namely, on an application for restoration and hence the Letters Patent Appeal would lie and is maintainable and it is therefore on this footing that we have proceeded to deal with this Letters Patent Appeal.

14. We, therefore, allow this Letters Patent Appeal, and direct that the Second Appeal shall be restored and readmitted under its original number and will now be placed at an early date for admission before the learned Single Judge, There will be no order as to costs of this Letters Patent Appeal.

15. Appeal allowed.


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