EMMANUAL SIMON PETERS Vs. ALICE PETERS

JUDGEMENT

(1.) By this application under Section 151 of the Code of Civil Procedure, the petitioner, an appellant in F. A. 0. 117/71, prays that the order made by this Court on November 12, 1975, dismissing the appeal on merits by a detailed judgment, though in the absence of the appellant and his counsel, be set aside on the ground that, for reasons which are set up in the application, the appeal could not have been heard on the merits on the date on which it was heard and decided and because this Court had no power or jurisdiction to dismiss the appeal on merits in the absence of the appellant and his counsel and that such dismissal must, therefore, be treated as if it was a dismissal in default under Rule 17 of Order XLI of the Code of Civil Procedure.

(2.) The appeal was listed for disposal on November 12, 1974 but it appears that prior to it, when it came up for hearing on November 7, 1974, learned counsel for the appellant had pointed out that the appellant had filed an application in the Registry of this Court under Order XLI, Rule 27 read with Section 151 of the Code of Civil Procedure and prayed that the hearing of the appeal be postponed till after the said application had been listed and decided. It, however, appears that although the appeal was listed, as referred to above, the application of the appellant was returned to the appellant because of some objection and was re-filed by the appellant only after the appeal had been heard and decided on November 12, 1974. The appellant apparently remained under the impression that the appeal would neither be listed nor heard until the application of the appellant had been listed and disposed of obviously because the decision of the application in favour of the appellant would have, to an extent, made a difference in the evidence that could be considered at the hearing of the appeal.

(3.) Shri Budhiraja learned counsel for the appellant, contended that (a) by virtue of the provisions of O. XLI, R. 17 of the Code of Civil Procedure, this Court had no jurisdiction to dismiss the appeal on merits in the absence of the appellant and his counsel, and (b) the dismissal of the appeal be treated as dismissal in default and as there has been sufficient cause for non-appearance of the appellant and his counsel on the date of hearing, the ex parte order should be set aside in exercise of power under R. 19, O. XLI of the Code of Civil Procedure and the other enabling provisions of the Code and the appeal listed for hearing. In support of his contentions, learned counsel relies on a Division Bench Judgment of the Patna High Court in the case of Deo Dutta Singh v. Ram Naresh Singh, AIR 1973 Pat 166.