DHANROOP Vs. PURUSHOTTAMDAS PUROHIT

JUDGEMENT

(1.) Appellants are aggrieved of second time summary dismissal of their F.A. No. 263/96 unsupported by any reasons. This is their second LPA on the issue. Their first LPA No. 103/97 was disposed off by us by consent order dt. 28-1-1998 requesting the First Appellate Court to re-examine the merit of the issues involved in their first appeal and to dispose it off in accordance with law. But that Court ignoring our request again summarily dismissed their first appeal by recording agreement with the trial Court without giving any reasons and by placing reliance on O. 41, R. 11(4) of C.P.C. Therefore, all that remained to be seen was whether First Appellate Court could give a short shrift to the appeal in this manner overlooking the order of the D.B. and whether O. 41, R. 11(4) authorised such a course?

(2.) The controversy arises out of the sale of suit land by appellants allegedly belonging to the temple. Respondent No. 1 filed suit No. 8-A/81 to set aside this sale which was decreed by Additional District Judge, Rajgarh, on 27-9-1996. Appellants took F.A. No. 263/96 against this which was summarily dismissed by First Appellate Court by order dt. 11-4-1997. They then filed L.P.A. No. 103/97 to assail this which was disposed off by consent order dt. 28-1-1998 requesting the First Appellate Court to reconsider the matter and examine the issues involved on merit. Pursuant thereto First Appellate Court issued notice to respondents and after hearing the parties dismissed the appeal again summarily without re-examining the merit of issues involved therein and by placing reliance on O. 41, R. 11(4).

(3.) The second summary dismissal was liable to be set aside straightway because of wrong reliance placed by First Appellate Court on O. 41, R. 11(4). It must be clarified at the very outset that O. 41, R. 11 deals with the power of the Appellate Court to dismiss the appeal summarily without sending notice to the respondent or his pleader and without admitting it to hearing. But in the present case First Appellate Court had issued notices to the respondents and had heard parties before dismissing the appeal summarily. Therefore, instead of O. 41, R. 11, it would be R. 31 which would come into play and which required that the judgment of the Appellate Court shall state the points of determination and the decision thereon and the reasons for decision. In this view of the matter First Appellate Court should have supported the impugned dismissal by reasons and it was not enough to record a mere agreement with the judgment of the trial Court. But that apart it would be still worthwhile and interesting to examine whether O. 41, R. 11(4) authorised High Court to summarily dismiss the first appeal without recording any reason. This order which assumes crucial importance in the matter is extracted hereunder :-