Ramanlal Maneklal Bhatt vs Legal Heirs Of Kaushikbhai ...
2022 Latest Caselaw 8948 Guj

      C/SA/221/2022                                    ORDER DATED: 10/10/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                   R/SECOND APPEAL NO. 221 of 2022
                                 With
              CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
                  In R/SECOND APPEAL NO. 221 of 2022
==========================================================
                    RAMANLAL MANEKLAL BHATT
                             Versus
          LEGAL HEIRS OF KAUSHIKBHAI VASUDEVBHAI BHATT
==========================================================
Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1,2
MR KP CHAMPANERI(5643) for the Appellant(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.2.1,1.2.2,1.2.3,1.3,1.4,1.5.1,1.5.2,2.1,2.2
for the Respondent(s) No. 1
MR.D K.PUJ(3836) for the Respondent(s) No. 1.1,1.2,2
==========================================================

  CORAM:HONOURABLE MR. JUSTICE HEMANT M.
        PRACHCHHAK

                               Date : 10/10/2022

                                 ORAL ORDER

1. Being aggrieved and dissatisfied with the judgment and

order dated 6.1.2020 passed by the learned 5 th Additional

Principal District Judge, Kheda at Nadiad in Regular Civil

Appeal No.79 of 2019 the appellant have 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 appellants before the First Appellate Court and only

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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 plaintiffs prove that, the properties described in plaint para 3, are joint ancestral properties of plaintiffs as well as defendants?

(2) Whether the plaintiffs prove that, the suit properties are in their possession?

(3) Whether the plaintiffs are entitled to get relief as prayed for?

(4) Whether the defendants prove that, by mutual understanding, their father got, the suit properties and since then, they are owner and in possession of suit properties?

(5) Whether the defendants prove that, land bearing Survey No. 952 & 958/2 were sold out since back and plaintiffs are very well aver about it?

(6) Whether the suit is time bared?

(7) Whether the suit is suffered for insufficient court fees?

(8) What order and decree?

4.1 The learned Trial Court has given following answers to the

above mentioned issues:

1. In negative

2. In negative.

3. In negative

4. In affirmative

C/SA/221/2022 ORDER DATED: 10/10/2022

5. In affirmative.

6. In affirmative

7. In negative

8. As per final order

5. The learned Appellate Court has framed following issues for

consideration:

"1. Whether the appellants prove that Ld. Trial Judge has erred in coming to the conclusion that the properties described in plaint para 3, are joint ancestral properties of plaintiffs as well as the defendants?

2. Whether the appellants prove that the Learned Trial Judge has erred in coming to the conclusion that the the suit properties are in possession of plaintiffs?

3. Whether the appellants prove that the Ld. Trial Court has erred in coming to the conclusion that the plaintiffs are not entitled to get relief as prayed for?

4.Whether the appellants prove that the Ld. Trial Court had erred in coming to the conclusion that the defendants prove that, by mutual understanding, their father got the suit properties and since then, they are owner and in possession of suit properties?

5.Whether the appellants prove that the Ld. Trial Court had erred in coming to the conclusion that the defendants prove that, land bearing Survey No. 952 and 958/2 were sold out since long back and plaintiffs are very well aware about it?

6. Whether the appellants prove that the Ld. Trial Court had erred in coming to the conclusion that the suit is time bared?

7. Whether the appellants prove that the Ld. Trial Court had erred in coming to the conclusion that the suit suffers from insufficient Court fees?

8. What order and decree:

C/SA/221/2022 ORDER DATED: 10/10/2022

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) In the negative (6) In the negative (7) In the negative (8) As per final order

6. Thereafter, learned Appellate Court has passed the

impugned order dated 6.1.2020. The operative portion of the

order passed by the learned First Appellate Court reads thus:-

"ORDER

1. The present Regular Civil Appeal No. 79 of 2019 is hereby dismissed.

2. The Judgment & Decree passed by the Ld. 3 rd Addl. Senior Civil Judge, Nadiad in Regular Civil Suit No. 29 of 2007 dated 24-04-2019, is hereby, confirmed.

3. The Record & Proceedings of Ld. Trial Court shall be sent back immediately with the copy of this judgment.

4. Decree is to be drawn accordingly.

5. Pronounced in the open Court on this day 06 th Day of January 2020."

7. At this stage, it is appropriate to take into account Order 41

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

C/SA/221/2022 ORDER DATED: 10/10/2022

"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 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

C/SA/221/2022 ORDER DATED: 10/10/2022

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. (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."

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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 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

C/SA/221/2022 ORDER DATED: 10/10/2022

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 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

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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, 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.

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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, 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.

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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 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

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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 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.

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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 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

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6.1.2020 passed by the learned 5th Additional Principal

District Judge, Kheda at Nadiad in Regular Civil Appeal No.79

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 a

fresh 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 First

Appellate Court, the present proceedings was decided, the

appellant is hereby directed to deposit Rs. 10,000/- before

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the Registry of the Trial Court within one month 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.

18. Accordingly, present Second Appeal stands disposed of

accordingly.

ORDER IN CIVIL APPLICATION

In view of the order passed today in main Second

Appeal, present Civil Application does not survive and the

same stands disposed of accordingly.

(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI