B.J.DIVAN, M.P.THAKKAR - (1.) The main question which arises for our consideration in this appeal is whether under Order 41 Rule 11 sub-rule (1) of the Code of Civil Procedure it is open to the appellate Court to dismiss the appeal before it on merits of the case even though the appellant or his pleader may be absent at the time when the appeal is called on for hearing. D.P. Desai J. sitting singly has taken the view that the appellate Court has such power under Order 41 Rule 11(1) and this appeal has been filed against the order passed by him refusing to restore the appeal and re-admit it under its original number under the provisions of Order 41 Rule 19.
(2.) The facts giving rise to this Letters Patent Appeal are as follows. on July 1 1971 D. P. Desai J. was sitting singly for admission and at that time Second Appeal No. 218 of 1971 came up for admission before him. On that day he passed the following order:- Mr. Vin absent. Having gone through the judgments of the Courts below and the memorandum of appeal I sec no reason to admit this appeal. Dismissed. Thereafter Mr. Vin moved the Court by Miscellaneous Civil Application No. 409 of 1971 for re-admitting the appeal on file and fixing it again for admission and his convention was that on July 1 1971 when the appeal was called out he was prevented from appearing before D.P. Desai. J. on account of sufficient reason. On November 24 1971 D.P. Desai J. passed the following order on the application filed by Mr. Vin:- Rule. Notice to the members of the Bar as ordered on the office (note) in C.R.A. No. 602/71. To be heard with C.R.A. No. 602/71. The ground given in the application for setting aside the order of dismissal and re-admission of the appeal on file was that Mr. Vin was busy with some other matter in some other Court when the Second Appeal was called out on July 1 1971 before D. P. Desai J. for admission. This ground was not controverted by the other side and therefore the learned Single Judge proceeded on the basis that Mr. Vin could not appear before him at the stage of admission because he was engaged in some other matter before another Judge of this High Court. In his judgment and order on the Miscellaneous Civil Application for re-admission of the Second Appeal on file and for restoration D. P. Desai J. made it clear that when the matter was called out for admission along with several other matters fixed on July 1 1971 no mention was made on behalf of Mr. Vin before the learned Judge that Mr. Vin was busy in some other Court and therefore the matter might be kept back for sometime in order to enable him to come and make his submissions before D.P. Desai J. nor was the matter transferred to another advocate under the right given to an advocate under Rule 17 of the High Court Appellate Side Rules. It was made clear by D.P. Desai J. that was not incumbent on Mr. Vin to transfer the matter to another advocate because he was engaged or was likely to be engaged in some other Court. He only took note of the fact that this right was not exercised in the present case.
(3.) It was urged by Mr. Vin before the learned Single Judge at the hearing of the Miscellaneous Civil Application that an order of dismissal on merits could not be passed by the Appellate Court under Order 41 Rule 11 when the party or his advocate was absent on the date fixed for hearing the party or the advocate The submission was that there was no jurisdiction in the Court to pass such an order that Order 41 Rule 11(1) contemplated hearing of the party or his pleader before the matter was dismissed summarily on merits. It was also urged that the only course left open to the Court while dealing with a matter fixed for hearing under Order 41 Rule it was to adjourn the matter if the party or his pleader did not appear and make submissions or to dismiss the matter for default under sub-rule (2) of Rule 11. It was contended before D.P. Desai J. in the Miscellaneous Civil Application that the order passed by the Court was on the face of it illegal and nullity and therefore the order could be reviewed either under the provisions relating to review or under sec. 151 of the Code. D.P. Desai J. has made it clear that if the order passed by him on July 1 1971 were to be read as an order for dismissal for default there was sufficient ground made out by Mr. Vin for restoration and re-admission of the matter so that the matter may be placed down once again for admission. It is in the light of this history of the matter that we will now proceed to deal with this appeal.;