PANNALAL Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) BY this order, we propose to dispose of M.C.C. No. 31 of 1990 and the connected Letters Patent Appeal No. 28 of 1987 because we heard counsel in both matters treating the two matters analogous.

(2.) THE two matters arise out of First Appeal No. 54 of 1978, disposed of on 26 -6 -1984. That appeal was admitted on 25 -7 -1979 and was listed on several dates for hearing. Finally, on 26 -6 -1984, finding the appellant's counsel absent, the appeal was dismissed for default in appearance. That order was passed by U. N. Bhachawat, J. and K. M. Agrawal, J., constituting the Division Bench which had heard the appeal. Surprisingly, however, an application was filed before a learned Single Judge of this Court in M.C.C. No. 151 of 1987 and that was heard and disposed of on 10 -10 -1987. The application was made under Order 41, Rule 19, Civil Procedure Code for restoration of the appeal and for hearing the same on merit. R. C. Shrivastava, J., who heard the matter, took the view that sufficient cause had not been made out for restoration and that it was a case of gross negligence on the part of the counsel and the slip was inexcusable. It was contended before him that Shri D. K. Kothari, learned counsel, appearing for the appellant/applicant, failed to notice the appeal in the cause -list due to accidental slip.

(3.) THE moot question indeed is if the order passed by R. C. Shrivastava, J. on 10 -10 -1987 in M.C.C. No. 151 of 1987 is an order passed under terms of section 104, Civil Procedure Code. On that question, Shri Jain, learned counsel appearing for the appellant/applicant, has addressed us at length submitting that the said order was appealable in terms of Order 043, Rule 1(t), Civil Procedure Code. Apparently, the crucial question is if that order is validly passed in terms of the provisions of Rule 19 of Order 41, Civil Procedure Code so as to be appealable under Clause 10 of the Letters Patent As per Rule 17, Order 41, it appears clear to us, the 'Court' in seisin of the appeal makes the order dismissing the appeal if the appellant does not appear when the appeal is called on for hearing. We have no doubt that Rule 19 which speaks of the 'appellate Court' refers to the same 'Court' which had seisin of the matter and had passed the order. If the 'Court' was constituted with one Judge, the application under Rule 19 of Order 41 is to be heard and decided by him and when the first order was passed by 'Court' consisting of two Judges, that 'Court' can only have jurisdiction to hear and dispose of the application made under Rule 19. Support for this view, we also find in Rule 5 of Order 47 and that provision has signal relevance to the controversy because the application made under Order 41, Rule 19 is of same nature as an application made for review. It is true that U. N. Bhachawat, J. had demitted office in the meantime, but K. M. Agrawal, J. still continues to be a Judge of this Court. For hearing and disposal of the application under Rule 19, Order 41, a Division Bench with K. M. Agrawal, J. and another Judge of this Court was only competent and another Single Judge of this Court could not be deemed to be 'appellate Court' for disposing of the said application. We have no doubt, therefore, that the order which R. C. Shrivastava, J. passed on 10 -10 -1987 in M.C.C. No. 131 of 1987 being without jurisdiction was nullity; and that is to be ignored.