Nagar Palika Parishad And Another vs Faheem Ahmad And Another
2017 Latest Caselaw 3891 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 34
 
Case :- FIRST APPEAL FROM ORDER No. - 1405 of 2013
 
Appellant :- Nagar Palika Parishad And Another
 
Respondent :- Faheem Ahmad And Another
 
Counsel for Appellant :- Kshitij Shailendra
 
Counsel for Respondent :- Faneesh Mishra
 

 
Hon'ble Saumitra Dayal Singh,J.

This appeal has been filed by the defendant against the order of the Additional District Judge, Court No.3, Bijnor dated 28.2.2013 rejecting the application no.C-3 filed by the defendant-appellant under Order 41 Rule 19 CPC to recall the order dated 14.2.2012 dismissing the appeal on merits though admittedly the defendant appellant had not argued the matter on merits.

Briefly, the order-sheet of Civil Appeal no. 27 of 2011 reveals that prior to the dismissal of the appeal on merits on 14.2.2012 certain dates had been fixed in the appeal proceeding. On 13.2.2012, when the matter was last fixed for hearing the counsel for the defendant appellant was present but he merely informed the Court about an adjournment application prepare by him but which he could not be file because his client could not be contacted.

It is also relevant on the previous date being 9.2.2012 the counsel for the defendant appellant had filed another application stating, on account of change of officers of the appellant Nagar Palika Parishad a substitution had become necessary. On that application came to be rejected.

It is thereafter that the appeal was decided on merits though, undisputedly the counsel for the defendant appellant did not advance any argument on merits.

Being faced with such situation, the defendant appellant then filed an application under Order 41 Rule 19 which has been decided by the impugned order wherein the lower Court below as held as under:-

"I have gone through the case laws cited above as well as provisions of Order 41 Rule 17 are applicable when appellants were absent and did not participate in the proceeding of appeal, then only one option for appellate Court to dismiss the appeal and not to decide the appeal on merits. But in the present matter, appellate Court has given full opportunity to appellants to argue. From perusal of order sheet of C.A. no. 27/11, it reveals that on 3.2.2012 adjournment application was moved by appellants, which was rejected and case was fixed for argument on 7.2.2012. Thereafter, appeal was fixed for argument on 9.2.2012. Another adjournment application was also moved by appellants which was also rejected and case was fixed on 14.2.2012. Opportunity was given to appellant by appellate Court to make arguments on 13.2.2012. On 13.2.2012 another adjournment application was also moved by appellants, which was also rejected by appellate Court and appeal was decided by appellate Court on 14.2.2012 on merits dismissing the appeal.

I have also perused the impugned judgment and found that appellate Court has decided the appeal on merit. This court has no jurisdiction to challenge the impugned judgment. Only remedy is available to appellants to file second appeal against impugned judgment before Hon'ble High Court. The provisions of order 41 Rule 17 & 19 CPC are not applicable in this matter. Therefore, restoration application is not maintainable and is liable to be dismissed."

Learned counsel for the appellant submits from the recital in the impugned order itself it is clear, on one hand, the lower appellate Court fixed short dates in the matter though difficulty cited by the defendant appellant was not such as could have been remedied within that short time granted by the lower appellate Court. On the other hand, it is clear from that order that adjournment had been sought by the defendant appellant which was rejected. Thereafter, the impugned order is silent and there is no observation whatever any argument had been advanced by the defendant appellant upon rejection of the adjournment application.

In fact, it is not disputed by learned counsel for the plaintiff respondents that no argument was advanced on behalf of the defendant appellant in that appeal. He however submits that before the order dated 14.2.2012 came to be passed more than sufficient opportunity had been granted to the defendant appellant and that being fully aware of those proceeding, the counsel for the defendant appellant chose not to advance any argument on merits, though he was present in the Court on the date fixed. He therefore submits that the order impugned in the present appeal does not suffer from any illegality.

In this regard he has placed reliance on judgment of the Supreme Court in the case of Mohammad Khalil Vs. Kamaruddin reported in 1996(5) SCC 625 in support of the submission that once the counsel for the defendant appellant had appeared on the date fixed, it was open to the lower appellate Court to decide the appeal on merits.

Perusal of the aforesaid judgment reveals that in that case there were four appellants before the High Court. While, the appeal had been filed on behalf of four appellants through counsel, during the pendency of the appeal, one of the four appellants changed his counsel while the other three defendants did not. In such facts, the counsel originally engaged by all four appellants appeared and argued the appeal on behalf of all appellants. Thus, the appeal came to be decided on merits by the High Court.

It was in this background that the fourth appellant who had changed his counsel approached the Supreme Court and submitted that the appeal could not have been heard and decided by the High Court on merits, on his behalf as the counsel who argued the matter was not representing him any further. The judgment in the case of Mohammad Khalil Vs. Kamaruddin (supra) is wholly distinguishable. The same appears to have been distinguished in earlier decision of the Court in the case of Shaukhat Hussain Vs. Saroj Bala and another reported in 2005 Allahabad 273. In the instant case, there was only one defendant appellant and it had not changed its counsel. On the other hand, it is on record that the counsel did not advance any argument at all. Therefore, reliance been placed by learned counsel for the respondent on the judgment of the Supreme Court in the case of Mohammad Khalil Vs. Kamaruddin (supra) is wholly misplaced.

Then, learned counsel for the respondent plaintiff has relied on another judgment of the Supreme Court in the case of Harbans Pershad Jaiswal (D) By Lrs Vs. Urmila Devi Jaiswal (D) By Lrs. reported in 2014 (5) SCC 723 to submit, even if there is any defect in the order of the lower appellate Court dated 14.2.2012, the defendant appellant is not entitled, as of right to recall of that order and restoration of that appeal unless he shows sufficient cause for non-appearance.

In so far as the first aspect is concerned, submits learned counsel for the defendant appellant the position in law is fairly settled. The Supreme Court in the case of Ghanshya, Dass Gupta Vs. Makhan Lal reported in (2012) 8 SCC 745 had held as below:-

"7. Rule 17(1) of Order 41 deals with the dismissal of appeal for the appellant's default. The abovementioned provision, even without Explanation, if litenally read, would clearly indicate that if the appellant does not appear when the appeal is called for hearing, the court has to dismiss the appeal. the provision does not postulate a situation where, the appeal has to be decided on merits, because possibility of allowing of the appeal is also there, if the appellant has  a good case on merits; even if nobody had appeared for the appellant.

8. Prior to 1976, conflicting views were expressed by the different High Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Some High Courts had taken the view that it was open to the appellate court to consider the appeal on merits, even though there was no appearance on behalf of the appellant at the time of hearing. Some High Courts had taken the view that the High Court cannot decide the matter on merits, but could only dismiss the appeal for the appellant's default. Conflicting views raised by the various High Courts gave rise to more litigation. The legislature, therefore, in its wisdom, felt that it should clarify the position beyond doubt. Consequently, the Explanation to sub-rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub-rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate Court to dismiss the appeal on merits where the appellant remained absent or left unrepresented on the day fixed for hearing the appeal. The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non-appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant."

It logically flows from the aforesaid reasoning that if any proceeding in appeal, counsel for the appellant is present but does not advance any argument, it would have to be deemed to be a case where the appellant remained absent or case was left unrepresented on the date. In such case, even if the appellant is not treated to be deemed absent, he has to be treated to have been left unrepresented because the counsel did not advance any submission in support of the appeal.

To be represented in an appeal or the Court proceedings is to be represented in a manner where the counsel appearing for the party advances argument on merits i.e. the counsel represents the case of his clients. Unless the counsel advances any argument on behalf of the appellant it cannot be treated that he has represented his client on issue affecting merits of the case.

Accordingly, the only course upon with the lower appellate Court, on the last date fixed in the appeal was to reject the adjournment and dismiss the appeal for want of prosecution.

No argument having been advanced on merits, it was not open to the lower appellate Court to have proceeded to decide the matter on merits. The order is clearly unsustainable and deserves to be set aside.

On the other aspect raised by learned counsel for the respondents plaintiff that the appellant would have to show sufficient cause to recall the order dated 14.2.2012 it is seen that the counsel for the defendant appellant had cited his difficulty in addressing the Court on merits because of certain adjournment application having become necessary. He had further stated the adjournment application had been prepared and sent to his client but that perhaps due to certain changes in the constitution of the Nagar Palika Parishad as noticed in order dated 9.2.2012, could not be finalized. That apart even if one is to ignore the difficulty cited by the defendant appellant with respect to the amendment application, in view of the fact that the lower appellate Court could not have proceeded to hear and decide the appeal on merits, the order of the lower appellate Court made on merits as to be set aside and the appeal has to be heard and decided on merits, afresh.

Accordingly, the impugned orders dated 28.2.2013 and 14.2.2012 are set aside. The matter is remitted to the lower appellate Court to rehear and decide the appeal on merits, in accordance with law.

It is made clear, any observation made in this order in respect of the merits of adjournment application is only relevant for the purposes of disposal of this appeal. Amendment application, if any, filed by the defendant appellant may be decided on its own merits by the lower appellate Court influenced by any observation made in this order and further the appellate Court shall endevour to hear and decide the appeal expeditiously is possible, preferably within a period of six months from today without allowing any undue or long adjournment to either parties.

The appeal is allowed. No order as to costs.

Subject to payment of cost Rs. 2,000/- to the plaintiff respondent no.1 on the date of production of certified copy of this order before the lower appellate Court or the first date of hearing thereafter.

Order Date :- 1.9.2017

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