ANWARUL HASAN Vs. D SEN GUPTA

JUDGEMENT

(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. "

(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.