Pareshbhai Keshavlal Shah vs Proprietor Of Deepa Enterprise
2022 Latest Caselaw 8749 Guj

     C/SA/219/2022                               JUDGMENT DATED: 04/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 219 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK                          Sd/-

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1    Whether Reporters of Local Papers may be allowed                  No
     to see the judgment ?

2    To be referred to the Reporter or not ?                           Yes

3    Whether their Lordships wish to see the fair copy                 No
     of the judgment ?

4    Whether this case involves a substantial question                 No
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                       PARESHBHAI KESHAVLAL SHAH
                                 Versus
                     PROPRIETOR OF DEEPA ENTERPRISE
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Appearance:
MR. HEMAL SHAH(6960) for the Appellant(s) No. 1
MR KIRTIDEV R DAVE(3267) for the Respondent(s) No. 1
MR RAHUL K DAVE(3978) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                             Date : 04/10/2022

                            ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the judgment and

order dated 27.1.2022 passed by the learned Principal

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District Judge, Surendranagar in Regular Civil Appeal

No.12 of 2019 under Section 96 of the Civil Procedure

Code, the appellant has filed present Appeal.

2. Heard learned Counsels appearing for the respective

parties and perused the record and the impugned

judgment and order of the lower Court.

3. From the record it appears that the appeal is decided

ex-parte in absence of the learned Counsel appearing for

the present appellant before the First Appellate Court

and only on that ground the learned Appellate Court has

decided the appeal.

4. At this stage, it is appropriate to take into account the

issues framed by the learned Trial Court which read as

under:

(1) whether the plnt. proves that the deft. on behalf of the firm, has purchased the goods on credit from the peti. during the period of dt. 13-5-98 to 6-8-98? (2) whether the plnt. proves that an amount of Rs.4,55,86-17 P. are remained due and outstanding from the deft.?

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(3) whether the peti.is entitled for interest ? If yes, then at what rate?

(4) whether the peti. is entitled for recovery of Rs.6,24,000/- from the deft.?

(5) what order and decree?

4.1 The learned Trial Court has given following answers

to the above mentioned issues:

(1) Affirmative (2) Affirmative (3) Negative (4) Partly affirmative (5) As per final order

5. The learned Appellate Court has framed following

issues for consideration:

1. Whether the learned trial court has grossly erred in concluding that the plaintiff has proved that the defendant on behalf of the firm has purchased the goods on credit during the period from 13/05/1998 to 06/08/1998?

2. Whether the learned trial court has grossly erred in concluding that the plaintiff has proved that the sum of Rs.4,55,866.12 P. is due from the defendant and the plaintiff is entitled to recover the same from the defendant? .

3. Whether the impugned judgment and decree passed by the learned Principal Senior Civil Judge, Surendranagar in Special Civil Suit No.79/2000 dated 14/07/2017 is arbitrary, illegal and is against the settled principles of law?

4. Whether the impugned judgment and decree passed by the learned trial court requires any interference of this appellate Court?

5. What order?

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5.1 The learned Appellate Court has given following

answers to the above mentioned issues:

(1) In the negative (2) In the negative (3) In the negative (4) In the negative (5) As per final order

6. Thereafter, learned Appellate Court has passed the

impugned order dated 27.1.2022. The operative portion

of the order passed by the learned First Appellate Court

reads thus:-

"ORDER The Regular Civil Appeal is hereby rejected. The judgment and decree dated 14/07/2017 passed by the learned Principal Senior Civil Judge, Surendranagar in Special Civil Suit No.79/2000 is hereby confirmed.

The registry is directed to send back the original record and proceedings of the Special Civil Suit No.79/2000 to the concerned court along with a copy of the judgment of this Regular Civil Appeal.

No order as to costs.

Decree be drawn accordingly.

Pronounced in the open Court on this 27th day of January 2022."

7. At this stage, it is appropriate to take into account

Order 41 Rule 17(1) of C.P.C., which reads as under:-

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"R.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. In the decision in case of Abdur Rahman and others vs.

Athifa Begum and others reported in 1996(6) SCC 62, the

Hon'ble Apex Court has held as under:-

"2.The qualified notice issued to the respondents indicated that this Court proposed to grant leave against the impugned judgment and order of the Appellate Court and on allowing the appeal, was expecting to remit the matter back to the file of the Appellate Court for disposal of the matter on its merits. The respondents' learned counsel has been confronted with the proposition that though the Appellate Court could have dismissed the appeal in default in the absence of the appellants' counsel, it could not have adverted to the merits of the case. Here, the Appellate Court has recorded that all relevant aspects of the matter have been taken into account in order to hold that there was no available ground for interference with the decision of the Appellate Court. This was an exercise with which

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the Appellate Court should have been well-advised not to indulge in at the stage or Order 41 Rule 17 CPC. The Explanation to Order 41 Rule 17(1) CPC says that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits. The Appellate Court having transgressed that limit, we have therefore no option but to allow the appeal, set aside the impugned judgment and order of the Appellate Court and put the matter back to its file for fresh disposal in accordance with law. Ordered accordingly. No costs."

9. It is also relevant to refer that the Hon'ble Apex Court

in case of Prabodh Ch. Das and another vs. Smt.

Mahamaya Das and others reported in AIR 2020 Supreme

Court 178 has dealt with the Appeal under Section 100

under Order 41 Rule 17 and also dealt with the question

that whether the High Court is justified in dismissing the

second appeal on merits in the absence of the learned

Counsel for the appellants. In the decision in case of

Prabodh (supra) Hon'ble Apex Court has held as under:-

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

"R.17. Dismissal of appeal for appellant's default.

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(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."

9. Explanation to subrule (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 of CPC. Therefore, the explanation was introduced w.e.f 01.02.1977, 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.

10. This position has been clarified by this Court in Abdur Rahman and others v. Athifa Begum and others wherein it was held that High Court cannot go into the merits of the case when there was nonappearance of the appellant. In Ghanshyam Dass Gupta v. Makhan Lal this Court has reiterated the

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legal position as under:

"Prior to 1976, conflicting views were expressed by the different High Courts in the country as to the purport and meaning of subrule (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 subrule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in subrule (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

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for nonappearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant."

10. In the decision in case of Harbans Pershad Jaiswal

(Dead) by Legal Representatives vs. Urmila Devi Jaiswal

(Dead) by Legal Representatives reported in (2014) 5

SCC 723 Hon'ble Apex Court has dealt with the issue

about no appearance of appellant or respondent. If

appellant does not appear, appeal has to be dismissed for

default without going into merits under R.17(1) but if the

respondent does not appear, appeal can be heard ex-pare

on merits under R.17(2). If the appellant applies udder

R.19 for readmission of appeal or respondent applies

under R.21 for rehearing, Court has to be satisfied that

appellant or respondent was prevented by sufficient

cause from appearing. In the decision in case of Harbans

(supra) the Hon'ble Apex Court held as under:-

"6. It is, further, pointed out by the High Court that the respondent herein was the appellant in one of the appeals C.C.A.No.4/94 and the appellants herein were the respondents in that appeal. In so far as that appeal filed by respondent herein is concerned,

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same could be heard in the absence of the appellants (respondents in that appeal), in view of the provision contained in Order 41 Rule 17(2) of the CPC which reads as under:

"17(2) Hearing appeal ex parte: Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." Since another appeal was heard along with this appeal, that was the reason for hearing both the appeals together. Giving these reasons, the applications filed by the appellants were dismissed and present appeals are filed challenging the dismissal order dated 31-7- 2006.

7. As mentioned above, the sole contention of the appellant is that the appeal filed by the appellants could not have been dismissed on merits when the appellants remained unrepresented and at the most it could be dismissed only in default. In support of this contention, Mr. Sanyal, learned senior counsel appearing for the appellants referred to explanation appended to Order 41 Rule 17 of the CPC. Mr. Sanyal also relied upon the judgment of this Court in the case of Abdur Rahman & Ors. v. Athifa Begum.

9. It is a common case that the appeals filed by both the parties were governed by the procedure contained in Order XLI of the CPC. As per Rule 12,

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in case the appellate court does not proceed to dismiss the appeal in limine under Rule 11, it shall fix a day for hearing the appeal. Rule 14 prescribes that notice of the day fixed under Rule 12 is to be given in the appellate court-house. Rule 16 gives the appellants a right to begin the arguments at the time of hearing of the appeal. As per Rule 17, the appeal can be dismissed in case of appellant's default in appearance. Since the arguments hinges around this rule, we reproduce the said rule hereunder:

"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 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.

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

10. Where the appeal is dismissed in default under Rule 17, remedy is provided to the appellant under Rule 19 for re-admission of the appeal on moving an application and showing that he was prevented by any sufficient cause from appearing when the appeal

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was called on for hearing. Likewise, Rule 21 gives an opportunity to the respondent to move similar application for rehearing of the appeal by demonstrating sufficient cause for non- appearance, if the appeal was heard in his absence and ex-parte decree passed.

11. It is clear from the above that whereas appeal can be heard on merits if the respondent does not appear, in case the appellant fails to appear it is to be dismissed in default. Explanation makes it clear that the court is not empowered to dismiss the appeal on the merits of the case. As different consequences are provided, in case the appellant does not appear, in contradistinction to a situation where the respondent fails to appear, as a fortiori, Rule 19 and Rule 21 are also differently worded. Rule 19 deals with re-admission of appeal "dismissed for default", where the appellant does not appear at the time of hearing, Rule 21 talks of "re- hearing of the appeal" when the matter is heard in the absence of the respondent and ex-parte decree made. In Abdur Rahman case (supra), this Court made it clear that because of non-appearance of the appellants before the High Court, High Court could not have gone into the merits of the case in view of specific course of action that could be chartered (viz. dismissal of the appeal in default above) continued in the explanation to Order 41 Rule 17, CPC and by deciding the appeal of the

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appellants on merits, in his absence. It was held that the High Court had transgressed its limits in taking into account all the relevant aspects of the matter and dismissing the said appeal on merits, holding that there was no ground to interfere with the decision of the trial court.

12. In Ajit Kumar Singh case (supra) as well, same legal position is reiterated as is clear from para 8 of the said judgment which is reproduced below:

"8.There can be no doubt that the High Court erroneously interpreted Rule 11(1) of Order 41 CPC. The only course open to the High Court was to dismiss the appeal for non-prosecution in the absence of the advocate for the appellants. The High Court ought not to have considered the merits of the case to dismiss the second appeal.(See: Rafiq v. Munshilal (1981) 2 SCC 788). The same view was reiterated in Abdur Rahman v. Athifa Begum."

11. Considering the provision of Order 41 Rule 17 of the

Civil Procedure Code, the appeal is required to be

proceeded by the First Appellate Court on merits, after

giving proper opportunity of hearing to the learned

Counsels appearing for the respective parties. Hence, the

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order passed by the First Appellate Court is clearly in

breach of and in violation of Order 41 Rule 17 of the

C.P.C..

12. Therefore, to subserve the interest of justice, present

appeal is required to be remanded back to the First

Appellate Court for fresh consideration.

13. In present case on perusal of the judgment and order

of the First Appellate Court, it is abundantly clear that

the First Appellate Court has failed to discharge

obligation placed on it as a First Appellate Court and

therefore, in my opinion the judgment and order of the

First Appellate Court deserves to be quashed and set

aside and the same is required to be remanded back to

the First Appellate Court for considering the same a fresh

on merits and in accordance with law.

14. In the result, impugned judgment and order dated

27.1.2022 passed by the learned Principal District Judge,

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Surendranagar in Regular Civil Appeal No.12 of 2019 is

hereby quashed and set aside and the matter is remanded

back to the First Appellate Court to decide the same a

fresh on merits and in accordance with law.

15. The learned First Appellate Court shall decide the

same as expeditiously as possible and preferably within a

period of 6 months from the date of receipt of certified

copy of present order without influenced by any order

after affording opportunity of hearing to the learned

advocates for respective parties. The learned Advocates

for both the sides shall also cooperate in the proceedings

and shall not seek any unnecessary adjournment.

16. It is clarified that the matter is remanded only on the

ground referred to herein above of the case and this

Court has not entered into the merits of the case.

17. However considering the fact that on account of the

non-availability of the advocate concerned before the

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First Appellate Court, the present proceedings was

decided, the appellant is hereby directed to deposit

Rs. 25,000/- before the Registry of the Trial Court from

the date of receipt of certified copy of present order and

the same shall be transferred to the Legal Aid Committee

of the Trial Court within 15 days.

18. Accordingly, present Second Appeal stands disposed

of accordingly.

Sd/-

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI