JITENDRAKUMAR MAGANBHAI PATEL Vs. PARSHOTTAMDAS GOVINDBHAI PATEL

JUDGEMENT

(1.) . This Civil Revision Application has been directed against the orders pronounced by the learned 2nd Extra Assistant Judge, Nadiad, dated 1/02/1988 below Exhibit-1 in Civil Miscellaneous Appeal No. 123 of 1987 which calls upon me to decide and answer the undermentioned two questions : (I) Whether the First Appellate Court can decide and dismiss an appeal on merits, in absence of the appellant or the Advocate representing his cause, or whether it has a limited scope of dismissing the appeal for appellant's default only ? (II) Whether the authority or jurisdiction to decide and dismiss the appeal on merits, in absence of the appellant or his Advocate can be derived from the provisions contained under Sec. 107, Sec. 151 or Rule 33 of Order 41 of the Code ? The facts :

(2.) . The plaintiff had filed Regular Civil Suit No. 268 of 1985 in the Court of the learned Civil Judge (J. D.), Borsad for permanent prohibitory injunction in respect of the agricultural land bearing Survey No. 110 situated-at village Bhadran. The plaintiff had filed the necessary application for interim orders at Exhibit-5. The learned Civil Judge (J. D.), Borsad by his orders dated 16/05/1986 had vacated the ad interim orders earlier granted by him below application Exhibit-5. Being aggrieved and dissatisfied with the above said orders, the plaintiff had preferred the appeal before the District Court, Kheda at Nadiad, which came to be registered as Civil Misc. Appeal No. 87 of 1986. The learned Extra Assistant Judge, Nadiad before whom the said appeal was listed for hearing, dismissed the same by the judgment and orders dated 28/10/1987 for default of appearance. It requires to be noticed that the above said appeal came to be dismissed by the said orders not only for the default of appearance on the part of the learned Advocate representing the cause of the appellant, but also on merits. Later on the appellant-plaintiff had submitted the application for review of the said orders and for the readmission of the appeal on the ground that, if the learned Advocate for the appellant was found not to be present, then the only proper, legal and justifiable order would have been of the dismissal of the appeal in default only and that, the appeal could not have been dismissed on merits. This application also came to be "summarily dismissed" by the learned Extra Assistant Judge, Nadiad by the orders dated 1-2-1988 reiterating the say "that the Court has perused the Memorandum of Appeal, the judgment of the Court below and the documentary evidence adduced by the appellant, and that the Court has taken all the trouble to travel and watch the complete R and P of the suit and therefore, there is no scope of granting the application for review." The appellant feels aggrieved and dissatisfied with the above said orders of the summary dismissal of the said application. The said Orders form the subject-matter of this Revision and are on canvass before me.

(3.) . Mr. S. D. Patel, the learned Counsel who appears on behalf of the petitioner has urged that the learned Appellate Judge could not have dismissed the appeal on merits, when the learned Advocate representing the cause of the petitioner-appellant-plaintiff was not found to be present. In such circumstances the only course open and available to the Court was to dismiss the appeal only for the default of appearance on the part of the learned Counsel.