DOUZAKHAM Vs. THANSEI AND OTHERS
LAWS(GAU)-1970-8-5
HIGH COURT OF GAUHATI
Decided on August 10,1970

Douzakham Appellant
VERSUS
Thansei And Others Respondents

JUDGEMENT

R.S. Bindra, J. - (1.) In this revision petition by the plaintiff Douzakham the validity of the order dated 15th of February 1969 by which the Additional District Judge, Manipur, rejected his application for restoration of appeal dismissed in default, is challenged.
(2.) The appeal was originally pending with District Judge. Manipur, who by his order dated 22 -8 -1968 made the same over to the Additional District Judge, Shri P. N. Roy with the direction to the parties to appear before the latter on 29 -8 -1968 for further orders. When the appeal was taken up by Shri P. N. Roy on 29 -8 -1968 the appellant and his counsel did not put in appearance though the respondents were represented by their counsel. The appeal was consequently dismissed by Shri P. N. Roy on that day in default of appearance of the appellant on 28th of November 1968 Douzakham made an application in the Court of Shri P. N. Roy praying for readmitting the appeal at its old number. That application was accompanied by another application under Sec. 5 of the Limitation Act praying for condoning the delay if any. The application for restoration was opposed by the respondent. The learned Additional District Judge ultimately disallowed the same on the findings that the appeal had not been dismissed under Rule 17 of Order XLI, Civil Procedure Code, hereinafter called the "Code" that as such the application for restoration should be taken as having been made not under Rule 19 of that Order but under Sec. 151 of the Code, and that there were no sufficient grounds for allowing the petition for restoration under the latter provision. Aggrieved by the dismissal of the restoration application, Douzakham has come up in revision to this Court. Appeals are filed under Rule 1 of Order XLI and they are admitted under Rule 9 of the same Order. Rule 11 gives power to the Appellate Court to dismiss an appeal in limine after, of course, giving a hearing to the appellant or his pleader. Rule 12 (1) states that unless the Appellate Court dismisses the appeal under Rule 11, it shall fix a day for hearing the appeal, and notice of that date shall be sent both to the respondent as well as to the Court from whose decree the appeal is preferred. Rule 15 enjoins that the notice to the respondent shall declare that if he does not appear on the date fixed, the appeal will be heard ex parte. Just below Rule 15 comes the heading "Procedure on hearing". Then comes Rule 16 which provides that on the date fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heard in support of the appeal, and if the Court does not dismiss the appeal at once the respondent shall address the Court and thereafter the appellant shall be entitled to reply. Rule 17 (1) states that 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. Sub -rule (2) of Rule 17 prescribes that where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte.
(3.) It will be noticed that after the stage for hearing of appeal, subsequent to the service of the notice on the respondent, is reached. Order XLI contemplates dismissal of the appeal in default of appearance of the appellant only on the day fixed for hearing of the same or on any other day to which the hearing may be adjourned vide Rule 17 (1). It follows that if the appeal on a given date is not fixed for hearing but for some other purpose, and there can be a variety of such purposes, the Code does not provide for dismissal of appeal in default of appearance by the appellant. Although the parties' counsel in this appeal stated at the bar on the date of arguments that there is no authority on the exact interpretation of Rule 17 (1), but I have noticed that the point is not res integra.;


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