ARUN KUMAR SARKAR Vs. ARATI BHATTACHARJEE AND ORS.

JUDGEMENT

(1.) THIS is an appeal under Order XLIII Rule 1(t) of the Code of Civil Procedure challenging the order dated 15.06.2004, passed by the learned District Judge, Bongaigaon in Misc. (J) Case No. 3/2004 thereby rejecting the application filed by the present appellant under Order XLI Rule 19 of the Code of Civil Procedure. The present appellant had preferred Title Appeal No. 4/2002 in the Court of learned District Judge, Bongaigaon challenging the judgment and decree dated 08.10.2002, passed by the learned Civil Judge (Sr. Divn.), Bongaigaon in Title Suit No. 14/1999. By that judgment and decree, the learned trial court had decreed the suit of the respondents/plaintiffs for declaration of right, title and interest over the suit land and house and for recovery of has possession by evicting the present appellant. The appeal came up for hearing before the learned appellate court on a number of dates when the learned counsel for the appellant prayed for time. Ultimately, on 10.12.2003 when the appeal was fixed for final hearing, the learned counsel appearing for the appellant by filing an application being No. 765/2003 informed the court that he has no instruction from the appellant. The application is on record. It states that the appellant did not communicate with the learned counsel for giving necessary instruction for which the learned counsel was unable to argue the case on that day and so, prayed for adjournment. Learned court upon perusal of the application held that the appeal had been adjourned on as many as 9 (nine) occasions earlier and as per the new provision of the Code of Civil Procedure, adjournment cannot be granted for so many days. The application, therefore, was rejected without discussing the ground set forthwith in the application and consequently, the appeal was summarily dismissed for default. On perusal of order dated 10.12.2003 whereby the appeal was dismissed for default, it appears that the learned counsel was present in the court and made a prayer for adjournment on the ground of inadequacy of instructions. The learned court, under such circumstances, was of the view that appellant is absent and that is why dismissed the appeal for default.

(2.) THE appellant thereafter filed an application under Order XLI Rule 19 of the Code of Civil Procedure praying for re -admission of the appeal and that application was also dismissed by the learned trial court by the impugned judgment and order holding that the appellant was guilty of negligence. The subsequent order rejecting the application under Order XLI Rule 19 of the Code of Civil Procedure has been called in question in the present appeal under Order XLIII Rule 1(t) of the Code of Civil Procedure.

(3.) ON perusal of the records of the Title Appeal No. 4/2002 and on perusal of the application No. 765/2003 referred to above, it is apparent that on the date fixed for hearing, the learned engaged counsel of the appellant was present in the court. But instead of arguing the appeal on merit he filed application for adjournment on the ground that he had not received any instruction from the client. The application did not reveal as to what instructions were necessary at the stage of final hearing of the appeal. The learned first appellate court, therefore, perhaps did not commit any error in not accepting the application for adjournment But the question arises once appellant appears before the court personally or through engaged counsel and files application for adjournment and does not argue the appeal on merit whether the learned court can take recourse to the provision of Order XLI Rule 17 of the Code of Civil Procedure. Explanation to Order XLI Rule 17 of the Code of Civil Procedure provides that when appellant does not appear at the time appeal is called up for hearing, appellate court cannot pass any other order except dismissing the appeal for default But no provision is available under Order XLI taking care of the exigency that appellant appears but either does not argue or refuses to argue the appeal. Once adjournment prayer was found to be unacceptable, the learned first appellate court could have heard the appeal on merit on the basis of the available instructions. The order does not reflect as to whether such an option was given to the learned counsel for the appellant. If such an option had been given and thereafter the learned counsel for the appellant had refused to argue the case in that event either the learned counsel ought to have withdrawn his name to conduct the case in accordance with the provision prescribed by the law or he is duty bound to argue the case on the basis of the materials available with him. The impugned order does not show that such opportunity was given to the learned counsel for the appellant for arguing the appeal on the basis of the available materials. Since the required jurisdictional fact for taking recourse to the Order XLI Rule 17 is the absence of appellant before the court at the time of hearing, unless and until such jurisdictional fact exists, no appeal can be dismissed for default. In the case in hand, appellant engaged a learned counsel to represent himself before the appellate court and he was not aware as to whether the learned counsel was appearing or not. The moment the learned counsel put up appearance before the court, it would amount to appearance of the appellant itself and that being the position, the fundamental jurisdictional fact for exercising power under Order XLI Rule 17 would cease to exist. The impugned order, therefore, under Order XLI Rule 17 of the Code of Civil Procedure dismissing the appeal for default when the learned counsel for the appellant had been present in the court, is not in accordance with law and accordingly, it is set aside. Consequently, rejection of the application under Order XLI Rule 19 of the Code of Civil Procedure also becomes untenable. The appeal is accordingly, allowed and the impugned orders referred to above are hereby set aside. The title appeal No. 4/2002 of the Court of learned District Judge, Bongaigaon accordingly, stands re -admitted to file. The learned District Judge shall decide the appeal on merit in accordance with law. The appellant shall appear before the learned first appellate court on 30th November, 2015 to receive necessary orders. The records shall be sent to the first appellate court in the mean time. Upon receipt of the records, the learned first appellate court shall issue notice upon the respondents fixing a date for appearance.