Allahabad High Court
Sobhnath Singh vs Pitambar Singh And 2 Others on 19 December, 2013
Bench: Dinesh Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 19
Case :- SECOND APPEAL No. - 1180 of 2013
Appellant :- Sobhnath Singh
Respondent :- Pitambar Singh And 2 Others
Counsel for Appellant :- R.P. Yadav
Counsel for Respondent :- S.R. Verma
Hon'ble Dinesh Gupta,J.
This second appeal is preferred against the judgement dated 23.8.2013 passed by Additional District Judge, Court No. 3, Azamgarh in Civil Appeal No.48 of 2011 arising out of judgment dated 10.1.2011 passed by Upper Civil Judge, Junior Division, Court No. 25, Azamgarh in Original Suit No.4 of 2007.
The brief facts of the case giving rise to this appeal are that:-
The plaintiff-appellant (hereinafter called as the appellant) filed a Suit No.4 of 2007 against the defendants-respondents (hereinafter called as the respondents) for the relief of permanent prohibitory injunction. The said suit was dismissed vide order dated 10.1.2011.
Feeling aggrieved, the appellant preferred an appeal, which was registered as Civil Appeal No.48 of 2011 and was transferred to the Court of Additional District Judge, Court No. 3, who dismissed the same vide order dated 23.8.2013.
Feeling aggrieved, the appellant preferred this second appeal before this Court.
Heard learned counsel for the parties.
Notice was issued to the respondents before admitting this appeal and the respondents put in appearance through his counsel. Both the parties agreed that this appeal should be disposed of at the stage of admission.
Learned counsel for the appellant submitted that:
Admittedly, the appellate court has passed the judgment in the absence of the appellant, which is clear from the judgment itself and has caused illegality in deciding the appeal in the absence of the appellant.
The lower appellate court passed the judgment on merits, which is violation of law.
At the most, the appellate court could dismiss the appeal for default of the appellant.
The lower appellate court has not decided each and every issue framed in the appeal, and thus, the order passed by the appellate court is illegal and itself to be set aside.
That the court fixed a date for hearing of the appeal, and on that date, the appellant was not present, the lower appellate court, thus, without giving proper opportunity to the appellant for hearing fixed 23.8.2013 and on 23.8.2013 heard the arguments of the respondents and dismissed the appeal of the appellant on merits.
That the decree passed by the appellate court is illegal and itself to be set aside.
Learned counsel for the appellant further submitted that no proper opportunity has been afforded to the appellant, and thus, it is also violation of principles of natural justice.
Learned counsel for the respondents, however, submitted that admittedly the appeal was heard in the absence of the appellant, however, the appellate court has considered the question all the ground of objection raised by the appellant in his Memo of Appeal and passed the order on merits, which is not illegal and appeal has no merit and itself to be dismissed.
I am unable to accept the contention raised by learned counsel for the respondents. Admittedly, the appellant was not heard when the date was fixed for hearing of the appeal. The Court has ample power to dismiss the appeal in the absence of the appellant but has no power to decide the appeal on merits.
Order XLI, Rule 17 provides the procedure where the appellant failed to appear, which is as follows:
"17. Dismissal of appeal for appellant's default.- (1) 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.
[Explanation.- Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.]"
Thus, proviso clearly provides that if the appellant does not appear, the Court may, if things fit, dismiss the appeal for default but it has no power to dismiss the appeal on merits.
The Apex Court in Sukhpal Singh vs. Kalyan Singh, AIR 1963 164, it has been clearly held that when the appellant does not address any argument, the court is not bound to go through the materials and judgment and decide the case on the merits, and that it was only competent to dismiss the appeal for default. In view of the explanation to sub-rule (1), inserted by the Amending Act of 1976. In the case of Secretary, Department of Horticulture, Chandigarh vs. Raghu Raj, AIR 2009 SC 514, it has been held that once an appeal is admitted and placed for hearing, it can be dismissed for default but it cannot be dismissed on merits in absence of the appellant or his advocate.
In view of the above, it is clear that in absence of the appellant, the Court has no power to decide the appeal on merits.
In the present case, the Court has proceeded in absence of the counsel/appellant and decide the appeal on merits, which is illegal and the appeal is allowed.
The judgment of the appellate court dated 23.8.2013 is set aside and the matter is sent back to the appellate court to decide the appeal on merits after giving ample opportunity to both the parties and on the basis of material available on record. It is expected from the appellate court that the appeal shall be decided expeditiously.
Order Date :- 19.12.2013
Ajeet
