ANAND DEO GIRI Vs. DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) This writ petition under Article 226 of the Consti tution has been directed against the decision of the District Judge, Allahabad dated 15-11-1979 which is Annexure 9 to the Writ petition in a Miscellaneous appeal arising out of an injunction matter. The facts relevant for the purpose of this petition are that there is an All India Harijan Sewak Sangh which has a branch at Allahabad also. It is known as Harijan Sewak Sangh, Allahabad. This is a registered Society under the Societies Registrations Act having a registered Constitution of its own. There was some dispute about the fact as to whether the petitioner was still continuing as President of the Harijan Sewak Sangh, Allahabad or not, as the respondent No. 3 claims to have been appointed by Respondent No. 2, as the new President of the said Harijan Sewak Sangh, Allahabad. In respect of this controversy a suit was filed in the Court of Civil Judge, Allahabad in which an injunction application was moved by the petition er which was disposed of by the order dated 8-9-1979 against the petitioner. The petitioner then filed an appeal against the order which came up for hearing before the District Judge, Allahabad. It is alleged that the matter came up before the Court on 2-11-1979 but on that date due to a Presiding Officer's death, the Court had been closed, therefore, 15-11-1979 was fixed. On 15-11-1979 the petitioner's senior counsel was not available as he was busy in some part-heard case in the High Court and also because he wanted to go out to attend the marriage of his nephew. An application for adjournment on this ground was, therefore, moved in the Court of the District Judge which was rejected by him holding that there were several counsels appearing and that under the amended order 17, Rule 2 (c) the ground that the counsel was busy In another case was not a sound ground. The parties were directed to be present at 3 p. m. for hearing of the appeal. Then an application was moved on behalf of the petitioner for two weeks' time for obtaining stay order from the High Court by moving a transfer ap plication and for staying proceedings in the meantime. This applica tion was rejected and thereafter the counsel who had moved this appli cation also withdrew himself. The District Judge therefore, beard the respondent and decided the appeal dismissing the same by his order dated 15-11-1979. It is against this order that the petitioner has filed this petition, inter alia, on the grounds that no decision on merit could be given by the District Judge under Order 41, Rule 17 Civil Procedure Code and also on the ground that the petitioner's application for adjournment had been wrongly dismissed by that Court. The only point involved in this petition therefore was as to whether the impugned order could be passed on merits in view of the provisions contained under Order 41, Rule 17 Civil Procedure Code Order 41, Rule 17 read as under: "where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal is dismissed. (Explanation.-Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits.) The contention of the petitioner was that the appeal was taken up for hearing in the morning when an adjournment application was moved. After its rejection by the Court, the case was taken up at 3 p. m. when another ap plication was moved by Sri P. C. Pandey, Advocate, on behalf of the petitioner for seeking time for bringing stay order from the High Court. This appli cation was also rejected and thereafter Sri Pandey withdrew from the case. Under Order 3, Rule 4 Civil Procedure Code, a counsel cannot withdraw without the leave of the Court. However, in this case we find from the order of the District Judge dated 15-11-1979 that the Counsel had withdrawn after the rejection of the application. It may be assumed that there was Impliemed permission by the Court to the petitioner's Counsel Sri Pandey to withdraw. Thereafter the appeal was heard and decided on merits. The question, therefore, arises whether in view of the explanation to rule 17 or Order 41 Civil Procedure Code the appeal could be disposed of on merits at all or not. The petitioner has contended that when the appeal was being taken up neither the appellant nor his counsel were there before the Court. Only the respon dent's counsel was heard and the appeal appears to have been disposed of on merits for which the learned District Judge has no jurisdiction at all, in view of the said Explanation. The contention, however, is met by the respondents by arguing that Rule 17 only requires the presence of the appellant or his counsel when the appeal is called on for hearing. If the Counsel for the appellant was present at the time when the appeal was called on for hearing and subsequently, after an adverse order has been passed on some application, he withdrew from the suit, it would not mean that the Counsel for the appel lant was not present when the appeal was called on for hearing. There appears to be sufficient force in this contention. On a reading of Rule 17 it is obvious that it is at the time when the appeal is called on for hearing that the presence of the appellant or his Councel's presence is required. Admittedly in this case the counsel did appear at 3. p. m. which was the time fixed by the Court for hearing of the appeal. An application was in fact moved, argued, and after the adverse orders had been passed, the Counsel withdrew. It cannot, therefore, be said that when the appeal was called on for hearing either the appellant or the councel was absent. The Court acquired jurisdiction to decide the case on merit when the appellant's Counsel appeared before the Court when the appeal was ready fur hearing. Any subsequent withdrawal or this absence of the appellant is not material and it cannot be made a ground subsequently that no decision on merit could have been passed by the Court in these circumstances. There is another aspect of the matter Order 17 deals with the adjourn ment of suits. It is well established that the appeal is a continuation of the suit. Also there is no separate provision for the adjournment of the hearing of the appeal under Order 41 of Civil Procedure Code. Therefore the same principles as are provided for by Order 17 should apply in the matter of adjournment of appeals. Order 17, Rule 2 lays down that on an adjourned date if the parties or any of them failed to appear the Court can proceed to dispose of the suit either under Order 9 or make such other order as it deems fit. In this Code an amendment has been made and an Explanation added which lays down that a party represented by a counsel though engaged for the purpose of making an application will be deemed to be present in the Court. These provisions coutained in Order 17 are fully applicable to matters pending before the appellate Court. In any case, the principle under lying the same would certainly apply to appeals. In that view of the matter the petitioner would be deemed to be present before the District Judge when the appeal was taken up at 3 p. m. on 15-11-1979. If therefore, Rule 17 in terms do not apply and it is held that the petitioner was present in the Court when the appeal was called for hearing then the powers of the Court to dispose of the matter on merits cannot be taken away. The Counsel for the petitioner has tried to argue that Rule 17 cannot be interpreted in this manner and at best the Court can treat that the order has been passed by the District Judge in the absence of the plaintiff and instead of passing an order merely for dismissing the appeal in default an order dismissing the appeal on merits had wrongly been passed and as such the order passed by the District Judge should be quashed, or it should be-clarified that the impugned order was merely the order dismissing the appeal in default. I have considered this argument also but I cannot agree with the same. To my mind, as I have already held earlier, that true meaning of Rule 17 requir ed the presence of the petitioner only at the time when the appeal was called on for hearing and the Courts jurisdiction would not be affected by the subsequent withdrawal of the counsel or of the party from the Court. Once it is found that at the time when the appeal was called the petitioner and his counsel were both present it cannot be said that Rule 17 could be applied to the proceedings and it would be deemed as if the petitioner had nothing to say in his favour to substantiate the appeal which was decided on merits and ultimately dismissed. It was lastly argued by the counsel for the petitioner that even the reading of the impugned order would show that the Court had not applied its mind to the matter before him and it, without looking to the order of the trial Court, mentioned in its judgment that the discretion has been rightly exercised by the lower Court. I have gone through the judgment of the Civil Judge and I find that the Court had considered various aspects of the matter and it had come to the conclusion that though there was balance of convenience in favour of the petitioner yet no prima facie existed in his favour. Apart from this the Court also held that the plaintiff had sup pressed material facts from the Court and had made false and misleading statement. The Court has mentioned that the fact that the Harijan Sewak Sangh was also running a High School, a Primary School and other vacations schools was deliberately not mentioned in the application for injunction in order to avoid the effect of amended provisions of Order 39, Rule 2 Civil Procedure Code. Therefore the Court relied upon the case of J. N. Bhambari v. Indian Over Seas Bank, decided by Delhi High Court, came to the conclusion that a discretionary relief should not be granted if the plaintiff has not come to the Court, with clean hands. It was in these circumstances that the Court declin ed to exercise discretion in favour of the petitioner and rejected the appli cation for Injunction. By the impugned order the District Judge has con sidered this aspect of the matter and has, therefore, refused to interfere in the lower Courts decision remarking that the discretion has been rightly exercised by the Court below. There was nothing wrong or illegal in the Court doing so. It was also contended that Order 39, Rule 2 as amended by Uttar Pradesh is no longer in force in view of amendment made by the Parliament in C. P. C. by the Central Act 106 of 1976. This submission also does not appear to be correct in view of a Full Bench decision of this Court in Chandra Rani v. Vikram Singh. (1) Having considered the matter from all the points of view, I am of the opinion that there was no illegality committed by the District Judge in passing the impugned order. There is thus no merit in this writ petition which is accordingly dismissed, with costs. .