2014 (4) TMI 1271 - SC - Indian Laws

Maintainability of appeal - ex-parte order - plea of the Appellants was that in the absence of their Counsel, appeal filed by them could not have been decided on merits and the only course open to the Court was to dismiss the appeal in default - Order XII Rule 17 of the Code of Civil Procedure in such an eventuality - Consequences when respondent not present and also in the case where appellant fails to appear - HELD THAT - Whereas appeal can be heard on merits if the Respondent does not appear, in case the Appellant fails to appear it is to be dismissed in default. Explanation makes it clear that the court is not empowered to dismiss the appeal on the merits of the case. As different consequences are provided, in case the Appellant does not appear, in contradistinction to a situation where the Respondent fails to appear, as a fortiori, Rule 19 and Rule 21 are also differently worded. Rule 19 deals with re-admission of appeal dismissed for default , where the Appellant does not appear at the time of hearing, Rule 21 talks of rehearing of the appeal when the matter is heard in the absence of the Respondent and ex-parte decree made. In Abdur Rahman case 1996 (8) TMI 471 - SC ORDER , this Court made it clear that because of non-appearance of the Appellants before the High Court, High Court could not have gone into the merits of the case in view of specific course of action that could be chartered (viz. dismissal of the appeal in default above) continued in the explanation to Order XLI Rule 17, Code of Civil Procedure and by deciding the appeal of the Appellants on merits, in his absence. It was held that the High Court had transgressed its limits in taking into account all the relevant aspects of the matter and dismissing the said appeal on merits, holding that there was no ground to interfere with the decision of the trial court. In the facts of the present case, the Respondent had filed the Suit seeking partition of two properties claiming half share each in both these properties mentioned in Schedules A and B. The trial court had decreed the Suit in respect of Schedule B property but dismissed the same qua Schedule A property. Both the parties had gone in appeal. In so far as appeal of the Respondent is concerned, the same has been allowed ex parte as nobody appeared on behalf of the Appellants. This course of action was available to the High Court as Sub-rule (2) of Order XLI Rule 17 categorically permits it. Though the Appellants moved application for setting aside this order, the same was dismissed on the ground that no reasonable or sufficient cause for non-appearance was shown. Therefore, this part of the order of the High Court is without blemish and is not to be interfered with. Appeal there against is dismissed. Even if the appeal was to be dismissed in default, whether that order warranted to be recalled on application made by the Appellants? - HELD THAT - As is clear from the reading of Rule 19 of Order XLI, the Appellants were supposed to show sufficient cause for their non-appearance. The High Court has given categorical finding that no such cause is shown. The learned senior Counsel for the Appellants did not even address on this aspect or argued that the reason given by the Appellant in the application filed before the High Court for non-appearance amounted to sufficient cause and the order of the High Court is erroneous on this aspect. Appeal dismissed.

Summary

Issues Involved:
1. Entitlement to property shares.
2. Ex-parte judgment and procedural fairness.
3. Application for setting aside the ex-parte decree.
4. Interpretation of Order XLI Rule 17 of the Code of Civil Procedure.

Issue-wise Detailed Analysis:

1. Entitlement to Property Shares:
The dispute arose from the inheritance of properties owned by Late Shiv Pershad Jaiswal. The Respondent, his daughter, filed a suit claiming a 1/3rd share, later amended to a 1/2 share after the death of her mother. The City Civil Court, Hyderabad, decreed that the Respondent and her brother (Appellant No. 1) were each entitled to half of the Schedule B property, dismissing the claim regarding Schedule A property. The Respondent appealed against the dismissal concerning Schedule A property, while the Appellants contested the decree regarding Schedule B property.

2. Ex-parte Judgment and Procedural Fairness:
The High Court heard the appeals in the absence of the Appellants' Counsel, Ms. Shalini Saxena, and ruled in favor of the Respondent. The Appellants later claimed they were unaware of the ex-parte judgment until 2006, leading them to file applications to set aside the judgment. The High Court dismissed these applications, noting the absence of sufficient cause for the non-appearance of the Appellants' Counsel.

3. Application for Setting Aside the Ex-parte Decree:
The Appellants filed four applications, including one to set aside the ex-parte decree. They argued that the High Court should have dismissed their appeal in default rather than on merits, as per Order XLI Rule 17 of the Code of Civil Procedure. The High Court rejected this plea, stating that the absence of the Appellants' Counsel was not justified and that the appeal filed by the Respondent could be heard ex-parte under Order 41 Rule 17(2).

4. Interpretation of Order XLI Rule 17 of the Code of Civil Procedure:
The Supreme Court analyzed Order XLI Rule 17, which allows for the dismissal of an appeal if the Appellant does not appear. The explanation to this rule clarifies that the court cannot dismiss an appeal on merits in such a scenario. The Supreme Court cited precedent cases, including Abdur Rahman v. Athifa Begum and Ajit Kumar Singh v. Chiranjibi Lal, affirming that an appeal should be dismissed in default, not on merits, if the Appellant is absent.

Conclusion:
The Supreme Court upheld the High Court's decision to dismiss the applications for setting aside the ex-parte decree, noting the lack of sufficient cause for the Appellants' non-appearance. The appeal against the preliminary decree for Schedule B property should have been dismissed in default, but the Supreme Court found no reason to recall this dismissal. Consequently, the appeals were dismissed.