Karnataka High Court
Dhanayya And Anr vs Chandrashekhar on 28 February, 2024
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NC: 2024:KHC-K:1789
RSA No. 200252 of 2017
IN THE HIGH COURT OF KARNATAKA, R
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO. 200252 OF 2017 (PAR)
BETWEEN:
1. DHANAYYA S/O KARABASAYYA GACCHINMATH
DEAD BY HIS LR'S.
1A) WISHWARADYA
S/O DHANAYYA GACCHINAMATH,
AGE: 46 YEARS, OCC: GOVT. SERVANT,
R/O. ANAND NAGAR, KALABURAGI.
1B) RAJANEESH
S/O DHANAYYA GACCHINAMATH,
AGE: 41 YEARS, OCC: PRIVATE WORK,
R/O. ANAND NAGAR, KALABURAGI.
Digitally signed
by RAMESH 1C) POOJA W/O BASAVARAJ STAWARMATH,
MATHAPATI
Location: High AGE: 38 YEARS, OCC: HOUSEHOLD,
Court of R/O. ANAND NAGAR, KALABURAGI.
Karnataka
(Amended as per order dated 23.03.2022)
2. NIRMALABAI
W/O DHANAYYA GACCHINAMATH,
AGE:65 YEARS, OCC: HOUSEHOLD,
BOTH ARE R/O. HOUSING BOARD COLONY,
NEAR DR. MAHADEVI MALAKAREDDY HOSPITAL,
KALABURAGI.
...APPELLANTS
(BY SRI. CHAITANYAKUMAR C. M., ADVOCATE)
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RSA No. 200252 of 2017
AND:
CHANDRASHEKHAR
S/O KARABASAYYA GACCHINMATH,
AGE: 65 YEARS, OCC: AGRI,
R/O. UDACHAN, TQ. AFZALPUR,
DIST. KALABURAGI-585102.
...RESPONDENT
(BY SRI. MAHADEV S. PATIL, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AD DECREE DATED:
02.04.2014 PASSED BY THE LEARNED CIVIL JUDGE AT
AFZALPUR IN O.S. NO. 83/2012 AND ALSO SET ASIDE THE
JUDGMENT AND DECREE DATED: 04.03.2017 PASSED BY THE
LEARNED SENIOR CIVIL JUDGE AND JMFC AT AFZALPUR IN
R.A. NO.18/2014 CONSEQUENTLY BE PLEASED TO DISMISS
THE SUIT FILED BY THE PLAINTIFFS.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal is filed by the defendants being
aggrieved by the judgment and decree dated 04.03.2017
passed in R.A.No.18/2014 on the file of the Senior Civil
Judge and JMFC, Afzalpur, (hereinafter referred to as "First
Appellate Court") by which the First Appellate Court
dismissed the appeal filed by the defendants and
confirmed the judgment and decree dated 02.04.2014
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passed in O.S.No.83/2012 on the file of the Civil Judge
Afzalpur (hereinafter referred to as 'trial Court').
2. Parties herein are referred to as per their rank and
status before the trial Court.
3. The essential facts of the case leading up to this
appeal, are as follows.
The suit in O.S.No.83/2012 was filed by the plaintiff
for partition and separate possession of the suit
properties. The suit was resisted by the defendants. The
trial court framed appropriate issues, and after the trial,
the suit was decreed by answering issue Nos. 1, 2, 4, and
5 in favour of the plaintiff and issue No.3 against the
defendant by declaring that the plaintiff is entitled to half
share in the suit properties. Being aggrieved by the said
judgment and decree passed by the trial court, the
defendants have preferred an appeal before the First
Appellate Court in R.A.No.18/2014, which came to be
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dismissed. Being aggrieved by the same, the appellant-
defendants have preferred this second appeal.
4. Heard the learned counsel appearing for both the
parties.
5. This appeal is admitted to consider the following
substantial questions of law;
(a) Whether the judgment and decree passed
by the First Appellate Court, considering
the appeal on merits in the absence of
appellant, after hearing the learned counsel
for the respondent is perverse and
arbitrary?
(b) What order?
Regarding point No.1:
6. I have heard the learned counsel for both the parties
and perused the judgment passed by the First Appellate
Court.
7. It is clear from the judgment of the First Appellate
Court that the learned counsel for the appellants did not
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submit any arguments on behalf of the appellants. On this
ground, the First Appellate Court considered that there
were no arguments on behalf of the appellants and
dismissed the appeal. It is well-settled law, in view of the
provisions of Order XLI Rule 17 of Code Of Civil Procedure
1908, that when the counsel appearing for the appellant or
the appellants are not present, and the counsel for the
respondent is present, the only course open to the First
Appellate Court is to dismiss the appeal for non-
prosecution. The appellate Court should not consider the
appeal on merits after hearing the counsel for the
respondent/s, as contemplated under Order XLI Rule 17(1)
of CPC. The same reads as follows:
"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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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."
8. In this regard, I rely on the decision of the Hon'ble
Supreme Court in the case of Benny D'Souza and
Others Vs. Melwin D'Souza and others reported in
2023 LiveLaw (SC) 1032, wherein it is observed as
under;
"Having heard learned senior counsel for the
appellants and learned counsel for the respondents,
at the outset, we extract Order XLI Rule 17 of the
CPC which reads 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." The Explanation categorically states that if
the appellant does not appear when the appeal is
called for hearing it can only be dismissed for non-
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prosecution and not on merits. However, the
impugned judgment is a dismissal of the appeal on
merits which is contrary to the aforesaid provisions
and particularly the Explanation thereto. On that
short ground alone the appeal is allowed the
impugned order is set aside."
9. The co-ordinate bench of this Court in the case of
Malleshi and Another Vs. Mallayya and Another
reported in 2005 (4) KCCR 2803, wherein it is held that
in view of provisions under Order 41 Rule 17 of Code Of
Civil Procedure 1908, when the counsel appearing for
appellant/s are not present and counsel for the
respondent/s is present, the only course open to the
appellate Court is to dismiss the appeal for non-
prosecution.
10. In the present case, the First Appellate Court at
paragraph 18 of the judgment noted that, despite
providing ample opportunities, the counsel for the
appellants did not present any arguments. Consequently,
the court considered the arguments on behalf of the
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appellants as NIL. Furthermore, in paragraph 19, it was
observed that the counsel for the respondent had
presented arguments and subsequently dismissed the
appeal. This order has been made clearly in contravention
mandatory provisions under of Rule 17(1) of Order XLI of
the Code Of Civil Procedure 1908, which runs counter to
the aforementioned decisions. Therefore, I answer the
point No.1 in the affirmative.
Regarding point No.2:
For the aforesaid reasons and discussions, I proceed
to pass the following:
ORDER
(a) The appeal is allowed and remanded to give
opportunity to the appellant/defendants to
advance their arguments;
(b) The judgment and decree dated 04.3.2017
passed in R.A.No.18/2014 on the file of the
Senior Civil Judge and JMFC, Afzalpur is set
aside and the appeal is restored to its file;
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(c) The First Appellate Court is directed to dispose
of the case in accordance with law as early as
possible.
(d) The parties are directed to appear before the
Court of Senior Civil Judge and JMFC, Afzalpur
on 27.03.2024 without awaiting for any
notice in this regard;
(e) Registry is directed to send the copy of this
judgment along with records to the First
Appellate Court forthwith.
Sd/-
JUDGE
MSR
