9911796707
TMI Blog1962 (5) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. R. 1 40 All. 248), for default, with costs. The contention raised for the appellant is that the High Court had no jurisdiction to decide the appeal fixed for final hearing without considering the proceedings of the Trial Court and the memorandum of appeal before it and that the right of the appellant to have the case decided on merits on the material before the Court was not ,dependent on his addressing the Court. Reliance is placed on the provisions of O.XLI, m. 30, 31 and 32, Code of Civil Procedure. We do not agree with this contention. Order XLI, r. 16 of the Code provides the procedure to be followed by the appellate Court on the hearing of an appeal which has not been dismissed under sub-r. (1) of r. 11 of that order. Rule 16 reads: "(1) On the day fixed, or on any other day to which the hearing may be adjourned, the appellant shall be heared in support of the appeal. (2) The Court shall then, if it does not dismiss the appeal at once, hear the respon- dent against the appeal, and in such case the appellant shall be entitled to reply." It is clear from sub-r. (1) that it is the duty of Appellate Court to hear the appellant in support of the appeal. This ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unds cannot take the place of the points for determination contemplated by r. 31. Not unoffensive certain grounds of objection raised in the memorandum of appeal are not argued or passed at the bearing and in that case such grounds cannot be taken to be the points for determination and are rightly not discussed in the judgment at all. It is for the appellant to raise the points against the judgment appealed from. He has to submit reasons against its correctness. Hecannot just raise objections in his memorandum of appeal and leave it to the appellate Court to give its decision on those points after going through the record and determining the correctness thereof. It is not for the appellate Court itself to find out that the points for determination can be and then proceed to give a decision on those points. The Privy Council observed in Mi. Fakrunisa v. Moulvi Izarm (A.I.R. 1921 P.C. 55, 56) "In every appeal it is incumbent upon the appellants to show reason why the judgment appealed from should be disturbed; there must be some balance in their favour when all the circumstances are considered, to. justify the alteration of the judgment that stands. Their Lord-ships are unable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It follows therefore that if the appellant submits nothing for its consideration, the appellate Court can decide the appeal without any reference to any proceed- ings of the Courts below and, in doing so, it can simply say that the appellants have not urged anything which would tend to show that the judgment and decree under appeal were wrong. In this connection, reference may be made to the provisions of s.423, Criminal Procedure Code, which provides the procedure to be followed by the appellate Court in disposing of criminal appeals. The relevant portion of its sub-s.(1) is : "The Appellate Court shall then send for the record of the case, if such record is not already in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 411A, sub-section (2), or section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - x x x x x The appellate Court is thus enjoined to pass the final order in the appeal after it had perused the record and heard the appellant or his pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication for adjournment shows clearly and distinctly that he did not wish to drop his appeal. He wished to press it. The bare fact that he could not argue it did not justify the District Judge in dismissing it. It was necessary for him under the circumstances to consider the grounds of appeal and to decide the case on the merits. This he has not done." This may be a good order on general grounds. But no attempt has been made to justify it on the basis of the provisions of the Code of Civil Procedure. In Syed Mohammadi Husain v. Mt. Chandro (A.I.R. 1937 All. 284,285, 1937 All. L.R. 439) Niamatullah J., said: "After refusing to adjourn the case, lower appellate Court was bound to decide the appeal before it. The inability of the pleader to argue did not relieve the Court of the necessity of applying its mind to the facts of the case and to decide it on its merits. A Court is not entitled to dismiss an appeal for 'want of prosecution' only because the appel- lant, if he appears personalty, or his pleader, who represents him, is, for any reason, unable to argue the appeal. The Court should proceed in the manner laid down by 0.41, rr. 30 and 31 Civil P.C........ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w an adjournment and such a discretionary order is, ordinarily, not a matter for the consideration of this Court in an appeal under Art. 136 of the Constitution. The petition for special leave did not mention this contention among the grounds of appeal. No special reasons exist for our entering into this contention. The order under appeal gives adequate reasons for rejecting the application for adjournment. The adjournment was sought on the ground that the appellant could not arrange for the payment of fees to his counsel and to instruct him, as he got intimation of hearing of the appeal three days before the date of hearing. The application for adjournment does not form part of the record prepared in this Court. The learned Judges of the High Court were of opinion that the appellant had sufficient time to instruct his counsel and to make arrangements for making the necessary payment to him. The appeal was posted for hearing on Feb. 23, 1954, practically a year before the date of hearing on which the appellant was refused adjournment of the hearing. Between February 23, 1954 and January 4, 1955, the case was also put up for hearing on April 5, and May 4, 1954. In the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to pay the fees but he wanted some time so that he could make the necessary arrangements. The High Court refused this prayer for time and appears to have asked the appellant whether he would argue the case himself The appellant expressed his inability to address the Court. It appears to me that when a Counsel engaged by a party refuses to address the court on behalf of his client it is next to impossible for a client to engage another Counsel on the spot to argue the case and ordinarily, impossible for the Counsel thus engaged to address the Court then and there. It is not also reasonable, in my opinion, to expect that a lay client should be able to' argue his appeal. To ask the appellant personally, in the circumstances like these, to argue the appeal is to ask for the impossible. It appears to me to be neither fair nor just that, when a Counsel' suddenly withdraws from a case, the lay client should be asked to argue the appeal himself. Justice, in my opinion, requires that in such a case the client should be given some time-however short-to engage a Counsel. I am constrained to think that the action of the High Court in refusing the appellant's prayer for time t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
