Selvi K. Nathan v. The Andaman And Nicobar Administration And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE SIDE JURISDICTION CIRCUIT BENCH AT PORT BLAIR

BEFORE:

The Hon'ble Mr. Justice Ravi Krishan Kapur And The Hon'ble Mr. Justice Tirthankar Ghosh MA 6 of 2022 CAN No. 1 of 2022 Selvi K. Nathan -vs- The Andaman and Nicobar Administration & Ors. For the appellant : Mr. Mr. K.M.B. Jayapal, Advocate For the administration : Mr. Mr. V.D. Sivabalan, Advocate For the respondent 4 : Mr. N.A. Khan, Advocate Reserved on : 8 February, 2023 Judgment : 14 March, 2023 Ravi Krishan Kapur, J. :-

1. The appellant assails an order dated 10 December, 2021 dismissing the writ petition.

2. The short question which arises for consideration is whether in the absence of the writ petitioner the Learned Single Judge ought to have decided the writ petition on merits.

3. Briefly, the disputes between the parties arise from an order dated 23 April, 2019 in RC No 1059/2019/TPB passed by the Tehsildar, Port Blair directing the private respondents to vacate the subject premises. The petitioner and the private respondents have rival claims in respect

of the subject premises. The appellant had filed this writ petition against the Andaman & Nicobar Islands Administration seeking implementation of the order dated 23 April, 2019. Finally, the writ petition was dismissed on merits. It is submitted that in the absence of the appellant, the Learned Judge ought not to have gone into the merits of the case.

4. On behalf of the respondents, it is contended that there are diverse proceedings pending pertaining to the subject premises and subsisting orders in respect of the same. It is further alleged that the petitioner has been delaying the entire proceedings on one pretext or the other.

5. Ordinarily, in the absence of the petitioner a Court does not enter into the merits of the case. In this context, reference may be made to Order 41 Rule 17(1) of the Code of Civil Procedure 1908 which provides as follows:

"Dismissal of appeal for appellant's default. - (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. Explanation: Nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on the merits."

6. A litigant who engages an Advocate is entitled to expect that the Advocate would appear and contest the proceeding on merits. Generally, in the absence of the petitioner, the Court either dismisses the petition for default or adjourns the case fixing another date of hearing. [Abdur Rahman and Others Vs. Athifa Begum and Others

(1996) 6 SCC 62, Secretary, Department of Horticulture, Chandigarh and Another Vs. Raghu Rah (2008) 13 SCC 365 at Paras 38 & 39].

7. The impugned order records that adjournments were sought for by the appellant on previous occasions which had been granted. However, the appellant was unrepresented on the day when the impugned order was passed. Thereafter, the Learned Judge proceeded to dismiss the writ petition on merits in the absence of the petitioner. The impugned order also records that the respondent authorities had not even been served. There are no reasons recorded as to why the Learned Judge proceeded to dispose of the writ petition on merits in the absence of the writ petitioner. This clearly prejudiced the rights of the petitioner.

8. In view of the above, the impugned order is set aside.

9. MA 6 of 2022 stands allowed. CAN 1 of 2022 also stands disposed of.

10. The matter is remanded to the Learned Judge with a request to consider and dispose of the same as expeditiously as possible without granting any unnecessary adjournments to either of the parties. The writ petitioner is directed to effect service of the writ petition forthwith on all the respondents. It is made clear that this Court has not expressed any view on the merits of the writ petition and the Learned Judge is at liberty to decide all issues including the point of maintainability after hearing all the parties. I agree.

(Tirthankar Ghosh, J.) (Ravi Krishan Kapur, J.)