SHOKAT ALI Vs. VITH ADDL DISTRICT JUDGE BULANDSHAHR

JUDGEMENT

(1.) The order dated 22nd February. 1992, passed by the Additional District Judge, VIIIth Court, Bulandshahr passed in Misc. Case No. 1 of 1992, has been challenged. Mr. Vishnu Sahai, learned counsel for the petitioner contends that the appeal was decided on merit without hearing the counsel for the appellant who was absent on the date fixed for hearing. Since Order XLI. Rule 17, sub-rule (2), Explanation provides that nothing in sub-rule (1), shall be construed to empower the Court to dismiss an appeal on merits in the absence of the appellant or its counsel, therefore, even if the appeal was dismissed on merit, yet it was in fact an order under Order XLI. Rule 17, dismissing the appeal in default for all practical purposes. Therefore, the same could have been restored under Order XLI. Rule 19. only after showing sufficient cause for non-appearance of the appellant. In the present case, the application was an application under Section 151 of the Code of Civil Procedure. In the said application, sufficient ground was not disclosed. The appellate court while passing the order dated 22nd February, 1992, did not advert to the sufficient cause. There was no finding with regard to sufficient cause. Therefore, the order cannot be sustained. According to him. an application under Section 151 is not amenable in view of Order XLI, Rule 19, providing specific procedure for the purpose. On this ground, he prays that, the order dated 22nd February. 1992, be set aside.

(2.) I have heard Mr. Vishnu Sahai, learned counsel for the petitioner at length.

(3.) In the present case, it appears from order dated 22nd February. 1992. that the lower appellate court while passing the said order had examined the records of the case and had found that sufficient opportunity was given to the counsel for appellant, yet neither the appellant nor his counsel had appeared in any of the date fixed for argument. It is also found that the counsel for the appellant was given opportunity to submit its written submission or argument. But no written submission or argument was filed. Therefore, on the date when the appeal was fixed for hearing on 17th February, 1988, no written submission was filed and. therefore, the appeal was decided without hearing the counsel for the appellant and without written submission filed by him. It is also found that though the counsel for the respondent had made his argument but at no point of time, the counsel for the appellant was ever heard.