- (1.) HEARD Sri Dharam Pal Singh, Advocate for the review appli cant and Sri A. B. Saran, Senior Advocate for the respondent satgreat length. It is contended by Sri Singh that on 23rd March, 2006 when this Court decided the appeal, one of the Counsel for the appellant, i. e. , review applicant had sentad-journment on the ground of illness and, therefore, this Court ought not to have heard the matter on merits and instead, ought to have adfourned the case on the ground of illness. He further submitted that in case the Court was not inclined to adjourn the matter, treating the appellant as had not appeared, it was not open to the Court to decide the case on merit and instead the appeal ought to have been dismissed in default as provided in Order 41, Rule 17 of the Civil Procedure Code, 1908 (in short'c. P. C. ). He has also placed reliance on Apex Courts decision in Abdul Rahman and others v. Athifa Begum and others, (1996) 6 SCC 62 and Rafiq and another v. Munshilal and another, AIR 1981 SC 1400.
(2.) FROM a perusal of record we find that the special appeal was initially filed by the review applicant (appellant) through Sri R. K. Awasthi, Advocate with the endorsement on Vakalatnama that Sri Ravi Kiran Jain, Senior Advocate, will appear. The appeal was presented in the Registry on 24. 10. 1997 and there after it was listed for admission on 26. 4. 2001 when no body appeared for the appellant. The Court dismissed the appeal in default which order was recalled by the Court on 2. 4. 2002 on the application of the appellant. In the meantime, Sri G. N. Yerma Advocate filed his Nakalatnama dated 8. 2. 2001 and Sri Hari Manish Bahadur Sinha, Advocate filed his Vakalatnama dated 11. 2. 2002 putting their appearance on behalf of the appellant. There after another Vakalatnama dated 19. 7. 2004 was filed by Sri Bhagwati Prasad Srivastava, Advocate on behalf of the appellant. Though no Vakalatnama of Sri D. P. Singh, Advocate (Devendra Pratap Singh) is available on record, but the restoration application No. 50269 of 2001 was filed by him on 23. 5. 2001 and some listing applications were also filed by Sri D. P. Singh on behalf of the appellant. The appeal there after came up for admission before a Division Bench on 7. 6. 2003 when the Court required learned Counsel for the ap pellant to show as to how the appeal was maintainable and thereupon the learned Counsel for the appellant sought adjournment so as to prepare the matter further on the question of maintainability of appeal. This is evident from the order dated 7. 8. 2003 which is quoted below: "learned Counsel for the appellant has prayed for a short adjournment in order to enable him to study further the question relating to the maintainabil ity of this appeal. As prayed for, list in the next week. " There after it was listed before the Court from time to time but could not be heard. On 31. 1. 2006 Sri G. N. Verma, learned Counsel appearing on behalf of the appellant sought adjournment which was accepted and the case was directed to be listed in the next cause list. On 23. 3. 2006 when the matter was listed before this Court, the names of S. Sri R. K. Awasthi, G. N. Verma, D. P. Singh, H. M. B. Sinha and Bhagwati Prasad Srivastava, Advocates were shown in the cause list as Counsels for the appellant. A? illness slip was sent only on behalf of one of so many Counsels, namely, Sri D. P. Singh. As we have seen from the order sheet, Sri D. P. Singh nad not appeared in the case to argue the matter at any point of time. Though restoration application was filed by him, but that too was argued by Sri H. M. B. Sinha, Advocate as is evident from the order dated 2. 4. 2002 and as ?ate as on 311. 2006 also when this matter was listed before this Court, Sri GN. Verma Advocate has appeared for, the appellant and sought adjournment. Even after filing this review application which is under consideration, initially on 30th March 2007 Sri G. N. Verma had appeared before the Court and requested for adjournment which was allowed but today ultimately, the matter has been argued by another Counsel Sri Dharam Pal Singh. It is in these circumstances that we propose to consider the submissions of the learned Counsel for the review appli cant, besides the question of law as to whether Order 41 Rule 17, CPC would have any application at all in an appeal arising out of an order passed by Hori'ble Single Judge in contempt proceedings. It would be important to state at this stage that we, at the outset, required Sri Singh to show as to whether there is any error, lega? or factual, in the view taken by this Court in our order dated 23. 3. 2006 where by we have held that the special appeal preferred by the appellant against rejection of his contempt application is not maintainabie to which he fairly conceded that probably he is not in a position to say that the view taken by this Court is exceptionable but then proceeded to submit that technically since this Court could not have decided the appeal when the appellant has not put in appearance or is absent in view of Order 41 Rule 17 C. P. C. , the Court was bound to dismiss the appeal in default without entering into merits of the case and, therefore, the order dated 23. 3. 2006 is liable to be set aside.
(3.) WE also confronted the leamed Counsel with another proposition that though we are clearly of the view that the provision of Order 41 Rule 17 C. P. C. has no application in the present proceedings yet for the sake of argument, if we accept his submission and allow his recall application, and then pass the same order as we have passed on 23. 3. 2006 that the special appeal is not maintainabie, would it make any difference in the matter, to which he culd not give any reply and instead said that he is required to discharge his professional obligation by making his submission that in the absence of the appellant the Court cannot decide the appeal on merit and is bound to dismiss the appeal in default and this Court may consider the same and pass appropriate order. Nw we proceed to consider whether this Court erred in law by deciding the question as to whether the appeal was maintainabie or not instead of dis-missing it in default following the procedure laid down under Order 41 Rule 17of the C. P. C.;