JANKI DAS Vs. DISTT JUDGE JHANSI

JUDGEMENT

(1.) D. K. Seth, J. The defendant-respondent in Misc. Civil Appeal No. 61 of 1999 had assailed the order dated 26-7-1999 passed in the said appeal by means of this writ petition.

(2.) BY an order dated 26-7-1999 the appeal was admitted fixing 28-9-1999 for argument. While admitting the appeal an order of status quo was issued till the next date.

(3.) A plain reading of the above provision makes it clear that the Appeal Court, after sending for the record or without or before sending for the record, may fix a date for hearing the appellant or its Counsel, and on such date, may dismiss the appeal without sending notice to the Court, the decree of which is appealed against and without serving notice on the respondents or his pleader. The expres sion "after sending for the record if it thinks fit so to do" implies that sending for the records before fixing the date for hear ing under Order XLI, Rule 11 (1) of the Code is discretionary. If it thinks fit it may do so or it may not do so. It is open to the Appeal Court to dismiss the appeal on the date fixed after hearing the appellant or his pleader. Such dismissal order can be passed without sending notice to the Court whose decree is appealed against. The ap peal can be dismissed under sub-rule (1) even without serving notice upon the respondent. Under sub-rule (2) thereof on the date fixed or on any adjourned date if the appellant fails to appear, the appeal Court is free to dismiss the appeal in default. Such dismissal is to be notified to the Court, the decree whereof was ap pealed against in view of sub-rule (3) thereof. But one thing is imperative viz. fixing a day for hearing the appellant or his pleader. The appeal Court may dismiss either after hearing the appellant or his pleader under sub-rule (1) or may dismiss in default under sub- rule (2) thereof. The expression "may" occurring in sub-rule (2) makes it clear that the Appeal Court in its discretion may dismiss or it may not. If it does not exercise the discretion to dismiss in default then it may either adjourn the date and fix another or it may admit the appeal even in the absence of the appel lant. In Bindhu Bhushan Sarkar v. Kulakamini Bose, 52 CWN 517, the Cal cutta High Court took the view that "may" in sub-rule (2) indicates that the Court has discretion to pass any order other than dismissal.