Doulat Ram And Anr vs Roop Chand And Ors
2021 Latest Caselaw 336 j&K

                                                                        Serial No. 218
                                                                       After Notice List

               HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU

                                                         RESC No. 23/2018
                                                         IA No. 01/2018

Doulat Ram and anr.                                            .....Petitioner(s)

                              Through: - Mr. O.P. Thakur, Sr. Advocate with
                                         Mr. R.K.S. Thakur, Advocate

                                        V/s
Roop Chand and ors.                                          .....Respondent(s)

                               Through: - Mr. R.K. Jain, Sr. Advocate with
                                          Ms. Himani Uppal, Advocate


CORAM:
                 Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
                                    ORDER

19.03.2021

1. Instant petition is filed for readmission/restoration of Civil First

Appeal bearing CFA No. 22/2013.

2. The background facts those emerge from the case in hand are that

a suit came to be filed on 24.01.2008 by the petitioners and proforma

respondent Nos. 12 to 14 herein in respect of a land situated at Village

Kandroria against the contesting respondents herein. The said suit is stated to

have been dismissed by the Trial Court vide judgment and decree dated

30.04.2013.

3. Against the said judgment and decree (supra) the petitioners

herein state to have filed a Civil First Appeal bearing CFA No. 22/2013. The

aid appeal is stated to have been dismissed on 17.09.2018 by this Court along

with a connected writ petition bearing OWP No. 1798/2015 in absence of the

present petitioner/appellants herein.

RESC No. 23/2018

4. It is being stated that on 17.09.2018 the appeal along with the

writ petition (supra) were listed for final hearing before this Court at S. No. 30

and when the case was taken up, the arguing counsel for the respondents 1 to

11 was not present and that the petitioners was told that the cases stand

adjourned and it is further stated that the petitioners were under the impression

that the aforesaid cases would be again listed for final hearing. It is stated that

on 24th September, 2018 the clerk of the counsel for the petitioners informed

the petitioners that the above titled appeal and writ petition is dismissed on

17.09.2018. The information is stated to be shocking and suppressing for the

petitioners. It is being stated that the appellant No. 1 sent his grandson,

namely, Sh. Ankush Vaid and appellant No. 2 sent his son Sh. Surinder Vaid

to contact counsel where upon it is being stated that they had not been

informed that the appeal has been decided on 17.09.2018 and judgment

announced under Section 138 clause 3 of the J&K High Court Rules, 1999.

5. It is being further stated that the counsel informed the above

relatives of the petitioner Nos. 1 and 2 that they were under the impression

that the case had been adjourned on 19.07.2018, but in fact had been kept on

Board for next date that is 20.07.2018 and on the said date counsel did not

appear and then the case was heard and reserved on the said date. It is being

stated that the counsel expressed ignorance about keeping of the case on

Board for 20.07.2018 and reserving the same for judgment. It is being

contended in the application that the appellants and their counsel was not

admittedly present on 20.07.2018 when the case was reserved for judgment

and that it appears that the Court heard the respondents, reserved the aforesaid

appeal as well as writ petition whereafter dismissed the same on 17.09.2018.

RESC No. 23/2018

6. The fundamental contention urged in the instant application is

that in the aforesaid facts and circumstances, the appeal could not have been

dismissed on merits by the Court and least could have been dismissed in

default. The appeal, therefore, through the medium of the instant application is

sought to be restored and re-admitted to its original number along with instant

applications.

7. Per-contra respondent-10 in the objections filed resist and

controvert the contentions raised in the application so-much-so seeks

dismissal of the application on the premise that the order of dismissal of the

appeal has been passed legally by the Court and that the application in

question is not maintainable being utterly misconceived and unsustainable in

the eyes of law.

8. It is being further contended in the objections that appellant has

suppressed material facts from this Court regarding the orders passed in the

appeal from time to time inasmuch as, about the hearing of the appeal

undertaken thereof. A reference in the objections is made to orders dated

15.12.2017, 09.02.2018, 09.04.2018, 05.05.2018, 28.05.2018, 19.07.2018 and

20.07.2018 to demonstrate and show that the appeal was duly heard by the

Court affording a reasonable opportunity of hearing to the appellants as well

as the respondents. The contention that the appeal was dismissed on merits in

absence of the appellants is being stated to be factually incorrect. In essence

the said respondent herein seeks dismissal of the instant application.

9. Heard learned counsel for the parties and perused the record.

10. Learned counsel for the parties reiterates their stand in line and

tune with their respective pleadings.

RESC No. 23/2018

11. The moot point involved in the instant petition that begs

consideration of this Court is that whether in the facts and circumstances of

the case, the appeal could be said to have been decided on merits in absence of

the appellant and his counsel in breach of the provisions of Order XLI Rule 17

CPC warranting readmission of the same.

12. Before adverting to the aforesaid point involved in the present

petition it would be pertinent to refer hereunder to Order XLI Rule 16 and

Order XLI Rule 17 being relevant and germane hereto:-

"16. Right to begin.-(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against the appeal, and in such case the appellant shall be entitled to reply.

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 is 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."

13. Having regard to the aforesaid provision of law as contained in

Order XLI Rule 16 and Rule 17 as also various judgments passed by the Apex

Court on the subject, the law is no more res-integra that an appeal cannot be

dismissed on merits in absence of appellants or his counsel.

14. Now coming to the question as to whether the appeal had been

dismissed wrongly on merits and in breach of Order XLI Rule 17 it is revealed

on perusal of the record of proceedings of the appeal in question that after

RESC No. 23/2018

admission of the appeal in terms of order dated 31.12.2014, the same had been

set down for post-admission hearing and as a consequence whereof the

hearing of the appellants commenced on 15.12.2017 in terms of Order XLI

Rule 16 which provide for right to begin requiring appellant to be heard in

support of the appeal when the Court recorded the matter as heard in part in

presence of the learned counsel for the appellants as well as the respondents

and directed listing of the case on 07.02.2018 for continuation of arguments.

15. Perusal of the record of the proceedings further demonstrate that

on 09.02.2018 the hearing had got adjourned on account of non-appearance of

counsel for the respondents and the counsel for the appellants had been

present plainly suggesting that the counsel for the appellant had already been

heard and that the respondents counsel have had to be heard in the matter. The

appeal as such had got adjourned for continuation of arguments to 13.02.2018.

16. Perusal of the record of the proceedings further demonstrates that

the appeal had got adjourned on the next date of hearing i.e., on 09.04.2018

as well and 05.05.2018, on which dates none had appeared for the parties

except respondent No. 9 who had appeared in person.

17. Perusal of the record of the proceedings further demonstrates that

on 28.05.2018 both appearing counsels had been present before the Court

suggesting that the counsel for the respondents had been heard directing

listing of the matter for continuation on 29.05.2018.

18. Further perusal of the record of the proceedings demonstrates that

the appeal had come up for consideration on 19.07.2018 on which date the

appearing counsel for the parties had been present and the appeal had been

kept on board for 20.07.2018, on which date the appeal is recorded to have

RESC No. 23/2018

been heard and reserved. Admittedly, neither the appellant nor his counsel on

the said date had been present.

19. The aforesaid position ex facie imply that the hearing of the

appeal had commenced on 15.12.2017 in presence of counsel for the parties

and concluded on 19.07.2018 in presence of the counsel for the parties

whereafter on 20.07.2018 it had been reserved for orders notwithstanding the

use of expression "heard" appearing therein.

20. It is not the case set up by the appellants that they were not heard

in the matter at all and in the process were deprived of the right to begin under

Order XLI Rule 16. The above narration of facts are suffice to show that the

appellant as well as respondents stand heard in the appeal having been

provided with the real opportunity of being heard by the Court and upon

conclusion of the hearing the appeal had been reserved on 20.07.2018. The

non-appearance of the appellants and their counsel thus on the said date, as

such, pales into insignificance.

21. Further the cause expressed in the application in hand for non-

appearance of the appellant on 20.07.2018 is manifestly insufficient and not

convincing, in that, firstly, the counsel for the appellant has been present on

19.07.2018 when the appeal had been kept on board for 20.07.2018 as

presumption of correctness is attached to the order of the Court proceedings

recorded thereon on the appeal, unless anything contrary is shown thereof and

secondly, mere assertion of the counsel of the appellants detailed out in the

instant application in this regard becomes insignificant in absence of an

affidavit of counsel of the appellants in support of the said contention.

RESC No. 23/2018

22. The case seemingly is not a case of non-appearance simplicitor of

the appellants or their counsel, whereunder Court could not have decided the

appeal in question on merits in absence of the appellants or their counsel. The

application thus is held misconceived and entails dismissal and, is

accordingly, dismissed.

(Javed Iqbal Wani) Judge Jammu 19.03.2021 Angita

Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

ANGITA DEVI 2021.03.29 12:05 I attest to the accuracy and integrity of this document