Page No.# 1/ vs Ashish Mazumder And 9 Ors
2025 Latest Caselaw 906 Gua

Gauhati High Court

Page No.# 1/ vs Ashish Mazumder And 9 Ors on 6 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                              Page No.# 1/10

GAHC010080952023




                                                         2025:GAU-AS:7624

                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : RSA/89/2025

         JOYDEEP DAS AND 7 ORS .
         S/O LATE KARUNAMOY DAS,
         RESIDENT OF VILLAGE DAKSHIN BHAG (MAHAJAN BARI), P.O. DAKSHIN
         BHAG, P.S. BARLEKHA, DIST. MOULVIBAZAR, BANGLADESH,
         REPRESENTED BY THEIR LEGALLY AND DULY CONSTITUTED ATTORNEY
         SMTI. MUKTA DAS, AGED ABOUT 49 YEARS, W/O LATE NABENDU DAS,
         RESIDENT OF R.K MISSION ROAD, KARIMGANJ TOWN, P.O. KARIMGANJ,
         P.S. KARIMGANJ, DIST. KARIMGANJ, ASSAM- 788710, VIDE DOCUMENT
         SL. NO. 33/2022 DATED 29.12.2022.

         2: SRI SHANTANU DAS
          S/O LATE KARUNAMOY DAS

         RESIDENT OF VILLAGE DAKSHIN BHAG (MAHAJAN BARI)
         P.O. DAKSHIN BHAG
         P.S. BARLEKHA
         DIST. MOULVIBAZAR
         BANGLADESH

         REPRESENTED BY THEIR LEGALLY AND DULY CONSTITUTED ATTORNEY
         SMTI. MUKTA DAS
         AGED ABOUT 49 YEARS
         W/O LATE NABENDU DAS
         RESIDENT OF R.K MISSION ROAD
         KARIMGANJ TOWN
         P.O. KARIMGANJ
         P.S. KARIMGANJ
         DIST. KARIMGANJ
         ASSAM- 788710
         VIDE DOCUMENT SL. NO. 33/2022 DATED 29.12.2022.

         3: SMTI GOURI RANI DAS
          D/O LATE KARUNAMOY DAS
                                                   Page No.# 2/10

RESIDENT OF VILLAGE DAKSHIN BHAG (MAHAJAN BARI)
P.O. DAKSHIN BHAG
P.S. BARLEKHA
DIST. MOULVIBAZAR
BANGLADESH

REPRESENTED BY THEIR LEGALLY AND DULY CONSTITUTED ATTORNEY
SMTI. MUKTA DAS
AGED ABOUT 49 YEARS
W/O LATE NABENDU DAS
RESIDENT OF R.K MISSION ROAD
KARIMGANJ TOWN
P.O. KARIMGANJ
P.S. KARIMGANJ
DIST. KARIMGANJ
ASSAM- 788710
VIDE DOCUMENT SL. NO. 33/2022 DATED 29.12.2022.

4: SMTI MITA RANI DAS

D/O LATE KARUNAMOY DAS

RESIDENT OF VILLAGE DAKSHIN BHAG (MAHAJAN BARI)
P.O. DAKSHIN BHAG
P.S. BARLEKHA
DIST. MOULVIBAZAR
BANGLADESH

REPRESENTED BY THEIR LEGALLY AND DULY CONSTITUTED ATTORNEY
SMTI. MUKTA DAS
AGED ABOUT 49 YEARS
W/O LATE NABENDU DAS
RESIDENT OF R.K MISSION ROAD
KARIMGANJ TOWN
P.O. KARIMGANJ
P.S. KARIMGANJ
DIST. KARIMGANJ
ASSAM- 788710
VIDE DOCUMENT SL. NO. 33/2022 DATED 29.12.2022.

5: SRI SUJIT KUMAR DAS

S/O LATE JAGADISH CHANDRA DAS

RESIDENT OF VILLAGE DAKSHIN BHAG (MAHAJAN BARI)
P.O. DAKSHIN BHAG
P.S. BARLEKHA
DIST. MOULVIBAZAR
                                                   Page No.# 3/10

BANGLADESH

REPRESENTED BY THEIR LEGALLY AND DULY CONSTITUTED ATTORNEY
SMTI. MUKTA DAS
AGED ABOUT 49 YEARS
W/O LATE NABENDU DAS
RESIDENT OF R.K MISSION ROAD
KARIMGANJ TOWN
P.O. KARIMGANJ
P.S. KARIMGANJ
DIST. KARIMGANJ
ASSAM- 788710
VIDE DOCUMENT SL. NO. 33/2022 DATED 29.12.2022.

6: SRI JAGAT JYOTI DAS

S/O LATE JAGADISH CHANDRA DAS

RESIDENT OF VILLAGE DAKSHIN BHAG (MAHAJAN BARI)
P.O. DAKSHIN BHAG
P.S. BARLEKHA
DIST. MOULVIBAZAR
BANGLADESH

REPRESENTED BY THEIR LEGALLY AND DULY CONSTITUTED ATTORNEY
SMTI. MUKTA DAS
AGED ABOUT 49 YEARS
W/O LATE NABENDU DAS
RESIDENT OF R.K MISSION ROAD
KARIMGANJ TOWN
P.O. KARIMGANJ
P.S. KARIMGANJ
DIST. KARIMGANJ
ASSAM- 788710
VIDE DOCUMENT SL. NO. 33/2022 DATED 29.12.2022.

7: SMTI SHIBANI RANI DAS
 D/O LATE JAGADISH CHANDRA DAS

RESIDENT OF VILLAGE DAKSHIN BHAG (MAHAJAN BARI)
P.O. DAKSHIN BHAG
P.S. BARLEKHA
DIST. MOULVIBAZAR
BANGLADESH

REPRESENTED BY THEIR LEGALLY AND DULY CONSTITUTED ATTORNEY
SMTI. MUKTA DAS
AGED ABOUT 49 YEARS
                                                        Page No.# 4/10

W/O LATE NABENDU DAS
RESIDENT OF R.K MISSION ROAD
KARIMGANJ TOWN
P.O. KARIMGANJ
P.S. KARIMGANJ
DIST. KARIMGANJ
ASSAM- 788710
VIDE DOCUMENT SL. NO. 33/2022 DATED 29.12.2022.

8: SMTI RIPA RANI DAS

D/O LATE JAGADISH CHANDRA DAS

RESIDENT OF VILLAGE DAKSHIN BHAG (MAHAJAN BARI)
P.O. DAKSHIN BHAG
P.S. BARLEKHA
DIST. MOULVIBAZAR
BANGLADESH

REPRESENTED BY THEIR LEGALLY AND DULY CONSTITUTED ATTORNEY
SMTI. MUKTA DAS
AGED ABOUT 49 YEARS
W/O LATE NABENDU DAS
RESIDENT OF R.K MISSION ROAD
KARIMGANJ TOWN
P.O. KARIMGANJ
P.S. KARIMGANJ
DIST. KARIMGANJ
ASSAM- 788710
VIDE DOCUMENT SL. NO. 33/2022 DATED 29.12.2022

VERSUS

ASHISH MAZUMDER AND 9 ORS.
S/O LATE BHOLA NATH MAZUMDER,
RESIDENT OF A.C SEN ROAD, KARIMGANJ ROAD, P.O. AND DIST.
KARIMGANJ, ASSAM, PIN- 788710

2:SRI UJJAL MAZUMDER
 S/O LATE BHOLA NATH MAZUMDER
RESIDENT OF A.C SEN ROAD
 KARIMGANJ ROAD
 P.O. AND DIST. KARIMGANJ
ASSAM
 PIN- 788710

3:SMTI MADAVI MAZUMDER
 D/O LATE BHOLA NATH MAZUMDER
                                               Page No.# 5/10

RESIDENT OF A.C SEN ROAD
KARIMGANJ ROAD
P.O. AND DIST. KARIMGANJ
ASSAM
PIN- 788710

4:SMTI. SARBANI MAZUMDER @ SARBANI KARMAKAR

D/O LATE BHOLA NATH MAZUMDER

W/O SRI BUDHADEV KARMAKAR

RESIDENT OF 7 STATION ROAD
FLAT NO. 103
2ND FLOOR
DHAKURIA
CALCUTTA (WEST BENGAL)
700013

5:SMTI SWAPNA DAS
W/O LATE AJIT KUMAR DAS

RESIDENT OF PATHERKANDI STEEL HOUSE
NEAR PATHERKANDI POLICE STATION
P.O. AND P.S. PATHERKANDI
DIST. KARIMGANJ
ASSAM- 788724

6:SRI AMITAVA DAS
 S/O LATE AJIT KUMAR DAS

RESIDENT OF PATHERKANDI STEEL HOUSE
NEAR PATHERKANDI POLICE STATION
P.O. AND P.S. PATHERKANDI
DIST. KARIMGANJ
ASSAM- 788724

7:SMTI. SUSHMITA DAS
 D/O LATE AJIT KUMAR DAS

RESIDENT OF PATHERKANDI STEEL HOUSE
NEAR PATHERKANDI POLICE STATION
P.O. AND P.S. PATHERKANDI
DIST. KARIMGANJ
ASSAM- 788724

8:SETTLEMENT OFFICER
 KARIMGANJ
                                                                Page No.# 6/10

          P.O. AND P.S. KARIMGANJ
          DIST. KARIMGANJ
          ASSAM
          PIN-788710

          9:DEPUTY COMMISSIONER
           KARIMGANJ
           OFFICE OF THE DEPUTY COMMISSIONER
           P.O. AND P.S. KARIMGANJ
           DIST. KARIMGANJ
          ASSAM
           PIN-788710

          10:THE STATE OF ASSAM
           REPRESENTED BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM
          ASSAM SECRETARIATE
           DISPUR
           GUWAHATI-78100




                                    BEFORE
                   HON'BLE MR. JUSTICE DEVASHIS BARUAH




Advocates for the appellant(s)      :   Mr. O Laskar


Advocates for the respondent(s) :       Mr. D Mazumdar,

Senior Advocate Mr. C Gogoi

Date of hearing & judgment : 06.06.2025

JUDGMENT &ORDER(ORAL)

Heard Mr. O Laskar, the learned counsel appearing on behalf of the Page No.# 7/10

appellants. Mr. D Mazumdar, the learned senior counsel, assisted by Mr. C Gogoi, the learned counsel, who appears on behalf of the respondent Nos.1 to 7 and Mr. KK Bhattacharjee, learned Government Advocate, who appears on behalf of the respondent Nos.8, 9 and 10.

2. This Court vide the order dated 04.06.2025 admitted the instant appeal by formulating the following substantial question of law:

"Whether the learned First Appellate Court was justified in dismissing

the Appeal on merits when the appellants had not appeared"?

3. This Court duly heard the learned counsels appearing on behalf of the parties on the question as to whether the said substantial question of law is duly involved in the instant appeal.

4. This Court has perused the impugned judgment and order dated 30.09.2022 passed by the Court of the learned District Judge, Karimganj in Title Appeal No.4/2017. A perusal of the said judgment, and more particularly, paragraphs 6 and 8 clearly shows that the appellants remained absent on the dates on which the appeal was called for hearing as well as for a considerable period of time. The question, therefore, arises as to whether the learned First Appellate Court was within the jurisdiction to dismiss the appeal on merits or should have dismissed the appeal in terms with Order XLI Rule 17(1) of the Code.

5. This Court finds it relevant to take note of the judgment of the Supreme Page No.# 8/10

Court in the case of Prabodh Choudhury Das and Another Vs. Mahamaya Das and Others reported in (2020) 18 SCC 701 wherein the Supreme Court explained in paragraphs 7, 8 and 9 that when the appellant does not appear on the date fixed for hearing, or on the adjourned date for hearing, the Court cannot dismiss the appeal on merits. Paragraphs 7 to 10 of the said judgment being relevant are reproduced hereinunder:

"7. Order 41 Rule 17(1) of the Code of Civil Procedure is as under:

"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.]"

8. The Explanation to sub-rule (1) of Rule 17 was added by Act 104 of 1976. Prior to 1976, conflicting views were expressed by different High Courts in the country as to the purport and meaning of sub-rule (1) of Rule 17 of Order 41 CPC. Therefore, the Explanation was introduced w.e.f. 1-2-1977, to clarify the law by making an express provision that where the appellant does not appear, the court has no power to dismiss the appeal on merits. Thus, Order 41 Rule 17(1) read with its Explanation makes it explicit that the court cannot dismiss the appeal on merits where the appellant remains absent on the date fixed for hearing. In other words, if the appellant does not appear, the court may, if it deems fit, dismiss the appeal for default of appearance but it does not have the power to dismiss the appeal on merits.

9. This position has been clarified by this Court in Abdur Rahman v. Athifa Begum3, wherein, it was held that the High Court cannot go into the merits of the case when there was non-appearance of the appellant. In Ghanshyam Dass Gupta v. Makhan Lal this Court has reiterated the legal position as under : (Ghanshyam Dass Gupta case, SCC p. 747, para 8) "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 Page No.# 9/10

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."

10. Coming to the facts of the present case, the Court has decided the appeal on merits after noticing:

"... On this date a request for adjournment was made on behalf of Mr Lodh when the matter was adjourned to 18-12-2014 and on 18-12-2014 Mr Choudhury made a request for adjournment. Today Mr Choudhury is not even present to argue the matter and no request has been made on his behalf. I, therefore, proceed to decide the appeal on merits itself."

This order has been made clearly in contravention of Rule 17(1) of Order 41 CPC."

6. Taking into account the above, this Court, therefore, is of the opinion that the substantial question of law so formulated by this Court on 04.06.2025 is duly involved in the instant appeal.

7. Accordingly, the appeal stands allowed.

8. This Court, therefore, by taking into account the provisions of Order XLI Rule 23 A and read with Order XLI Rule 26A remands the appeal back to the Court of the learned District Judge, Karimganj for adjudication of the appeal afresh in accordance with law.

9. This Court further taking into account that both the parties are duly represented directs the parties to appear before the Court of the learned District Judge, Karimganj on 07.07.2025 which shall be the date fixed for hearing of the appeal.

Page No.# 10/10

10. Before parting with the records, this Court had duly taken note of the impugned judgment and order and, more particularly, the observations so made in paragraph 8 and it is the opinion of this Court that the learned First Appellate Court had erred in law in observing that there was no challenge to the order passed, whereby the cross examination of the plaintiff witnesses were closed, inasmuch as, when an appeal is preferred against the judgment and decree, Section 105 of the Code permits the appellant to raise all such grounds of objection in respect of which the appellants are not permitted to file appeal under the Code against the orders passed by the learned Trial Court during the suit proceedings.

JUDGE

Comparing Assistant