SHANTILAL CHANDRASHANKER Vs. BAI BASI WD O BHURA ANOP

JUDGEMENT

(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:-

(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.