Moses Pandian And Anrs v. K.Jayaraj

IN THE HIGH COUR AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR] ...

SAT/4/2021 Moses Pandian and another ... Appellants Vs.

K.Jayaraj ... Respondent Mr. Arul Prasanth, Advocate ... for the appellant Mrs. Anjili Nag, Advocate ... for the respondent September 10, 2021 [GNC] Item No.3 We directed the service of the copy of the memorandum of appeal upon the respondent without formally admitting the appeal under Order 41 Rule 11 of the Code of Civil Procedure for the simple reason that the Court of first appeal below without affording an opportunity of hearing to the appellant proceeded to decide the matter on merit solely on the basis of the written argument submitted by the respondent.

The two points are urged by the appellant in the instant appeal. Firstly, the appellant did not appear before the Judge taking up the first appeal and therefore the appellate court cannot decide the matter on merits but ought to have dismissed the appeal for default. Secondly the erstwhile presiding officer was transferred and the presiding officer who delivered the judgment joined on 14th December, 2019 whereas the first page of the judgment would reveal that he heard the appeal on 6th

December, 2019 and 17th December, 2019 which is improbable and inconceivable.

The entire order-sheet is annexed with the instant memorandum of appeal. It is revealed therefrom that the appeal was fixed on 25th October, 2019 by the predecessor of the present Judge and an adjournment was sought on behalf of the appellant which was granted and the appeal was fixed on 6th December, 2019 for hearing of the appeal. On the said date i.e. 6th December, 2019 the appellant did not take any steps whereas the respondent appeared therein and was heard by the learned Judge and a direction was passed upon the respondent to file written argument on 12th December, 2019. Subsequent thereto several orders came to be passed recording the participation of the respondent but there is no reflection therein that the appellant ever appeared and participated in the proceedings. Ultimately the written argument was filed by the respondent on 17th December, 2019 and date was fixed for delivery of the judgment. The impugned judgment is passed on 26th February, 2021.

It is a matter of great concern that the impugned judgment indicates that the appellant was heard and the judgment is passed on contest. Even if we overlook the hearing date i.e. 6th December, 2019 recorded in the impugned judgment as a ministerial defect or error yet the sequel orders passed in the said appeal does not instill any impression upon us that the appellant was in fact heard by the successor in-office of the

Court or by the predecessor in interest. The matter was adjourned on the prayer of the appellant and a date was fixed for further hearing and since thereafter the hearing does not appear to have been made by the appellant and it is only on the basis of the submission of the respondent the matter came to be disposed of on merit.

Order 9 Rule 8 of the Code of Civil Procedure does not permit the matter to be decided on merit in absence of the plaintiff thereof even if the defendant appeared. The proper course is to dismiss the proceeding for default and not to decide on merit without affording an opportunity to the plaintiff of the suit. Though the aforesaid provision contemplates that it is applicable to the suits but this no gain saying that the aforesaid provision mutatis mutandis applies to the appeal. Section 107 of the Code of Civil Procedure postulates that the appellate court shall have the same powers and shall perform as nearly as the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

By virtue of the aforesaid provision the appellate court enjoins all the powers of the original Court and the provisions applicable to the suits is also extended to the appeal. Apart from the same, Order 41 Rule 17 of the Code of Civil Procedure does not confer any power upon the appellate court to decide the appeal on merit in absence of the appellant.

absolute fetter on the part of the appellate court to dismiss the appeal on merit but such explanation has to be read conjointly with the other substantive provisions of the Code. The harmonious reading of the provisions of Order 9 Rule 8 and Order 41 Rule 17 leaves no ambiguity that in the event the court finds an admission on the part of the appellant or the respondent there is no fetter in deciding the appeal or the suit on the basis of such an admission but certainly it does not bestow the power to such extent that in absence of the appellant the matter would be decided on merit. The proper course, in our opinion is to dismiss the appeal for default and not to proceed on merit as if the appellant has taken such plea in the said appeal. Solely on the ground that the appellate court has proceeded to decide the matter on merit in absence of the appellant and the order recorded in the said appeal would also disclose that the appellant was never heard by a Judge who signed the order, we cannot sustain the order.

However, we make a note of caution that he should be abreast of the provisions of law and should not act in haste and must render justice which should be real and apparent and not rendering the justice in shadowed manner. If the record does not reveal that even the respondent was in fact heard orally but a written argument or submission was made and solely on the basis thereof the judgment came to be passed which ought not to have been as the appellant should be given opportunity to meet the submission of the respondent.

The order impugned is thus set aside.

The matter is relegated to the appellate court for fresh hearing.

The appellate court is directed to decide the matter on merit after affording opportunity of hearing to the respective counsels. The appellate court shall fix a date not exceeding 15 days from the date of receipt of this order and shall dispose of the appeal within one month therefrom.

Both the learned counsels appearing before us have assured before this Court that they would not seek any adjournment and shall cooperate and assist the court of appeal below in adhering the time limit as indicated hereinabove. The appeal is disposed of. All connected application, if any, shall also stand disposed of.

(Harish Tandon, J. ) ( Shivakant Prasad, J. )